Protection of a Reputable Foreign Trader's Legitimate Interests Under the Law of Passing-Off

6 Pages Posted: 9 Apr 2016 Last revised: 20 Oct 2016

See all articles by Kelvin Hiu Fai Kwok

Kelvin Hiu Fai Kwok

The University of Hong Kong - Faculty of Law

Date Written: April 7, 2016

Abstract

Analyses the UK Supreme Court decision in Starbucks (HK) Ltd v British Sky Broadcasting Group Plc [2015] UKSC 31; [2015] 1 W.L.R. 2628. Argues that: (i) the Starbucks case represented a missed opportunity for the Supreme Court to develop the law further still by recognising that evidence of mere reputation in the UK, as opposed to goodwill due to the presence of local customers, can itself satisfy the first element of actionable passing-off, with reference to the development in Australia, Hong Kong and other common law jurisdictions; and (ii) a foreign claimant with mere reputation in the UK has at least two legitimate interests that should be protected under the law of passing-off: first, the claimant’s ability to use its name or mark as part of its future expansion of business into the UK market; and secondly, the claimant’s brand image developed through its supply of high quality products or services over the years.

Keywords: passing-off; goodwill; reputation; foreign trader; Starbucks; Sky

Suggested Citation

Kwok, Kelvin Hiu Fai, Protection of a Reputable Foreign Trader's Legitimate Interests Under the Law of Passing-Off (April 7, 2016). 132 Law Quarterly Review 186 (2016); University of Hong Kong Faculty of Law Research Paper No. 2016/032. Available at SSRN: https://ssrn.com/abstract=2760314

Kelvin Hiu Fai Kwok (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

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