Law Report: Cordial cannot be called champagne: Taittinger and others v Allbev Ltd and another. Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Mann and Lord Justice Peter Gibson). 25 June 1993.

The use of the word 'champagne' to describe a non-alcoholic carbonated drink which was neither champagne nor associated with it would erode the goodwill in the distinctive name champagne and thereby damage the business of the champagne houses who are therefore entitled to restrain such use of the word.

The Court of Appeal allowed an appeal by the plaintiffs from Sir Mervyn Davies's dismissal (The Independent, 11 February 1993) of their passing off claim against the defendants.

The defendants, Allbev Ltd and Thorncraft Vineyard, produce, market and sell a non-alcoholic drink, labelled 'Elderflower Champagne'. It is widely available, costs about pounds 2.45 and is sold mainly in in the type of bottles associated with champagne, with a wired cork. In May, June and July 1992 sales averaged 12,000 bottles a month.

The plaintiffs, a producer of champagne and bodies which regulate the production of wines using French appellations d'origine, sued in passing off for damages and an injunction to restrain the defendants from using the word 'champagne' in relation to Elderflower Champagne and in assertion of a right under Council Regulation (EEC) No 823/87.

Sir Mervyn Davies decided that although there had been a misrepresentation in the defendants' labelling which was calculated to deceive, there was no likelihood of substantial damage to the goodwill belonging to the champagne houses and therefore the passing off claim failed. He also declined to exercise his discretion to grant relief under Community law.

Charles Sparrow QC and Nicholas Bragge (Monier-Williams) for the plaintiffs; Stuart Isaacs QC and Neil Calver (Batten & Co, Yeovil) for the defendants.

LORD JUSTICE PETER GIBSON said that the word champagne was distinctive of a sparkling alcoholic wine produced in, and only in Champagne. Champagne was a quality drink, associated in the minds of the public with celebratory occasions, and retailed from pounds 7.50 upwards.

The authoritative modern formulation of what constituted the tort of passing off was contained in Warnink v Townend & Sons (Hull) (1979) AC 731, the Advocaat case, where Lord Diplock identified five characteristics for a valid cause of action in passing off: (1) a misrepresentation (2) made by a trader in the course of trade (3) to his prospective customers or ultimate consumers of goods or services supplied by him (4) which was calculated to injure the business or goodwill of another trader (in the sense that that was a reasonably foreseeable consequence) and (5) which caused actual damage to a business or goodwill of the trader by whom the action was brought or would probably do so.

There was a misrepresentation that the defendants' product was champagne or in some way associated with it. It was called champagne and the impression the name conveyed was strongly reinforced by the get-up with so many features of a typical champagne bottle present. Some who noticed it was non-alcoholic might think that a non- alcoholic champagne had been produced by the champagne producers in the same way that non- alcoholic wine and beer had been.

The judge's finding on the second and third characteristics were not challenged.

Many members of the public who were prospective purchasers of champagne would be deceived into thinking that the defendants' product was champagne. It was as likely that a not insignificant number would think it had some association with champagne if it was not actually champagne.

The misrepresentation was plainly calculated to injure the defendants' goodwill.

On the evidence of the defendants' sales, the relevant activities of the defendants were not on such a small scale leading to such a small injury that it could be ignored. The erosion of the distinctiveness of the name champagne in this country was a form of damage to the goodwill of the business of the champagne houses.

If the defendants, with their not insignificant trade, were permitted to use the name Elderflower Champagne, the goodwill in the distinctive name champagne would be eroded with serious adverse consequences for the champagne houses. Therefore an injunction would be granted to restrain the defendants from referring to the word champagne. That did not prevent sale of the defendants' product, provided it was not called champagne. Since it was clear that a more than minimal risk of confusion was produced by the use of the name Elderflower Champagne, article 15(5) of the EC regulation was contravened and an injunction to prevent such contravention was granted.

LORD JUSTICE MANN, concurring, said the word 'champagne' had an exclusiveness which was impaired if used in relation to a product which was neither champagne nor associated with businesses which produced champagne. The impairment was a gradual debasement, dilution or erosion of what was distinctive, which would be incrementally damaging to the goodwill acquired by the name.

SIR THOMAS BINGHAM MR, concurring, said that any product which was not champagne but was allowed to describe itself as such must erode the singularity and exclusiveness of the description champagne and so cause the plaintiffs damage of an insidious but serious kind.

The amount of damage which the defendants' product would cause would depend on the size of the defendants' operation. That was not negligible now, and it could become bigger.

There was no rational basis on which, if the defendants' product were allowed to be marketed under its present description, any other fruit cordial diluted with carbonated water could not be similarly marketed so as to incorporate the description champagne. The damage to the plaintiffs would then be incalculable but severe.

Voices
The Sumatran tiger, endemic to the Indonesian island of Sumatra, is an endangered species
voicesJonathon Porritt: The wild tiger population is thought to have dropped by 97 per cent since 1900
News
The Swiss Re tower or 'Gherkin' was at one time the UK’s most expensive office when German bank IVG and private equity firm Evans Randall bought it
news
News
Gardai wait for the naked man, who had gone for a skinny dip in Belfast Lough
newsTwo skinny dippers threatened with inclusion on sex offenders’ register as naturists criminalised
Sport
Van Gaal said that his challenge in taking over Bobby Robson's Barcelona team in 1993 has been easier than the task of resurrecting the current United side
football
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebookA unique anthology of reporting and analysis of a crucial period of history
Arts and Entertainment
The Great British Bake Off 2014 contestants
tv
Arts and Entertainment
filmThe Battle of the Five Armies trailer released
News
news
Arts and Entertainment
Beast would strip to his underpants and take to the stage with a slogan scrawled on his bare chest whilst fans shouted “you fat bastard” at him
musicIndie music promoter was was a feature at Carter gigs
Arts and Entertainment
Story line: Susanoo slays the Yamata no Orochi serpent in the Japanese version of a myth dating back 40,000 years
arts + entsApplying the theory of evolution to the world's many mythologies
Extras
indybest
News
Performers dressed as Tunnocks chocolate teacakes, a renowned Scottish confectionary, perform during the opening ceremony of the 2014 Commonwealth Games at Celtic Park in Glasgow on July 23, 2014.
news
Life and Style
Popular plonk: Lambrusco is selling strong
Food + drinkNaff Seventies corner-shop staple is this year's Aperol Spritz
Life and Style
Shake down: Michelle and Barack Obama bump knuckles before an election night rally in Minnesota in 2008, the 'Washington Post' called it 'the fist bump heard round the world'
newsThe pound, a.k.a. the dap, greatly improves hygiene
Independent
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
santorini
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

PMO Manager (Portfolio Management, ExCel, Cost Benefit Analysis)

£450 - £500 Per Day: Clearwater People Solutions Ltd: PMO Manager - 6 month co...

Senior Fund Administrator - Edinburgh - £22 p/hr

£20 - £22 per hour + competitive: Orgtel: Senior Fund Administrator, Top Four ...

Nursery Nurse

£7 per hour: Randstad Education Chelmsford: Would you like to have a better wo...

Microsoft Dynamics CRM Functional Consultant

£50000 per annum + benefits: Progressive Recruitment: A Microsoft Dynamics CRM...

Day In a Page

The children were playing in the street with toy guns. The air strikes were tragically real

The air strikes were tragically real

The children were playing in the street with toy guns
Boozy, ignorant, intolerant, but very polite – The British, as others see us

Britain as others see us

Boozy, ignorant, intolerant, but very polite
Countries that don’t survey their tigers risk losing them altogether

Countries that don’t survey their tigers risk losing them

Jonathon Porritt sounds the alarm
How did our legends really begin?

How did our legends really begin?

Applying the theory of evolution to the world's many mythologies
Watch out: Lambrusco is back on the menu

Lambrusco is back on the menu

Naff Seventies corner-shop staple is this year's Aperol Spritz
A new Russian revolution: Cracks start to appear in Putin’s Kremlin power bloc

A new Russian revolution

Cracks start to appear in Putin’s Kremlin power bloc
Eugene de Kock: Apartheid’s sadistic killer that his country cannot forgive

Apartheid’s sadistic killer that his country cannot forgive

The debate rages in South Africa over whether Eugene de Kock should ever be released from jail
Standing my ground: If sitting is bad for your health, what happens when you stay on your feet for a whole month?

Standing my ground

If sitting is bad for your health, what happens when you stay on your feet for a whole month?
Commonwealth Games 2014: Dai Greene prays for chance to rebuild after injury agony

Greene prays for chance to rebuild after injury agony

Welsh hurdler was World, European and Commonwealth champion, but then the injuries crept in
Israel-Gaza conflict: Secret report helps Israelis to hide facts

Patrick Cockburn: Secret report helps Israel to hide facts

The slickness of Israel's spokesmen is rooted in directions set down by pollster Frank Luntz
The man who dared to go on holiday

The man who dared to go on holiday

New York's mayor has taken a vacation - in a nation that has still to enforce paid leave, it caused quite a stir, reports Rupert Cornwell
Best comedians: How the professionals go about their funny business, from Sarah Millican to Marcus Brigstocke

Best comedians: How the professionals go about their funny business

For all those wanting to know how stand-ups keep standing, here are some of the best moments
The Guest List 2014: Forget the Man Booker longlist, Literary Editor Katy Guest offers her alternative picks

The Guest List 2014

Forget the Man Booker longlist, Literary Editor Katy Guest offers her alternative picks
Jokes on Hollywood: 'With comedy film audiences shrinking, it’s time to move on'

Jokes on Hollywood

With comedy film audiences shrinking, it’s time to move on