THE WORDS "farm fluid" in the name of an agricultural disinfectant were not merely descriptive but were capable of being appropriated as a trade name, and their use in the name of a rival product, accordingly, amounted to passing off.
The plaintiff, Antec International Ltd, succeeded in an action for passing off against the defendant, South Western Chicks (Warren) Ltd.
The plaintiff had for many years manufactured and sold an agricultural disinfectant using the brand name "Antec Farm Fluid S". At the 1996 Stoneleigh agricultural show the defendant had advertised a competing agricultural disinfectant under the name "Super Farm Fluid", and was subsequently found to be marketing the product as "SWC Super Farm Fluid". The plaintiff brought an action for passing off, and obtained an interlocutory injunction.
Richard Hacon (instructed by Lupton Fawcett ) for the plaintiff; Denise McFarland (instructed by Baker & Duke, Ilminster) for the defendant.
Michael Hart QC said that the parties were at issue on each of the elements of the "classical trinity" of the tort of passing off, namely, whether the plaintiff had acquired goodwill in the name "Farm Fluid", the defendant contending that the term by itself was so generally descriptive that it had not acquired any secondary connotation in which goodwill could subsist; whether there had been any misrepresentation leading to confusion, or whether the addition of the prefixes "SWC" and "Super" to the defendant's product sufficed to dispel any potential confusion; and whether more than minimal damage had been or would be likely to be caused to the plaintiff's goodwill.
There was no controversy about the basic facts. The plaintiff made and sold, inter alia, disinfectants for use on farms. It was the market leader in England in that field. The name "Farm Fluid" had first been used as a name by Jeyes plc. In 1976 the plaintiff had acquired from Jeyes plc the business of Jeyes' Animal Health Division, which had included the making and selling of "Jeyes Farm Fluid". The plaintiff had continued to make and sell that product, but from 1979 onward had marketed and sold it as "Antec Farm Fluid", and from 1985 as "Antec Farm Fluid S".
The unchallenged evidence of the plaintiff established conclusively that the words "Farm Fluid" had come to be associated in the minds of the relevant section of the public (i.e. farmers) with the Antec product, but the defendant contended that the words were so generally descriptive that they could not serve, or be taken in law as serving, to distinguish the Antec product in the minds of the relevant section of the public from other similar products.
The courts would be very slow to intervene to protect a trade name which was simply descriptive. Whilst it was true that the words "farm" and "fluid" were common English words, the words "farm fluid" in conjunction, however, were not. In order to demonstrate that they were simply descriptive of the plaintiff's product, evidence of a general usage amongst farmers of the term "farm fluid" to describe agricultural disinfectants sold in liquid form would have been required, and there was no such evidence in the instant case.
The plaintiff had, on the evidence of witnesses in the trade, established that the marketing and sale of a product named "SWC Super Farm Fluid" would be likely to lead a substantial proportion of farmers to believe that there was some trade connection between that product and that of the plaintiff.
It followed almost inevitably that there was a likelihood that the plaintiff would suffer damage which was more than minimal if the defendant was permitted to use the words "Farm Fluid" in the description of its product.
Kate O'Hanlon, BarristerReuse content