Durham Trading Standards v Kingsley Clothing Limited

Date

30 June 1989

Legislation

Trade Descriptions Act 1968 ss1, 2, 3.

Keywords

trade descriptions; material degree; average shopper

Counsel

P Hoffman, T. Finch

Solicitors:

Durham CC; Longden Walker & Renney, Sunderland

Judge:

Neill LJ, Pill J

Court:

Divisional Court

Reported:

[1989] RPC 695

Summary:

Appeal by way of case stated from magistrates who dismissed an information laid against the Defendant. The information alleged that the Defendants had applied a false trade description to sweatshirts under section 1 of the Trade Descriptions Act 1968, namely the sign 'Marc O Polo', being a registered trade mark. The question was whether, in considering whether the trade description was false to a material degree for the purposes of section 3(1), it was correct to ask whether it was such as to mislead the average shopper.

Decision:

The divisional court held that the correct approach to determining whether an offence has been committed has four stages: (1) Has a trade description been applied to the goods? (2) Is that trade description false in any particular? (3) Is it false to a material degree? In making this judgment, it is permissible to look at the whole of the description of the goods to see whether the false part is material having regard to the accuracy of the other parts. (4) Even if it not false, then it is necessary to consider section 3(2), namely whether even if not false, the trade description is misleading, in which case the magistrates should put themselves in the position of the ordinary shopper.

However, even though the magistrates were entitled to adopt the approach they did, they gave insufficient weight to the prominence of the trade mark on the sweatshirts and that accordingly the case would be remitted with a direction to convict.