Although british sugar led evidence through their mr

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did not understand this evidence to be challenged. Although British Sugar led evidence (through their Mr. Goodwin) of a belief of confusion between the two products and damage to goodwill, passing off is not alleged. Robertson's, through a variety of witnesses led evidence of an opposite belief. British Sugar did not lead any evidence of actual confusion, although the Robertson product has been available for 4 months. No-one, whether from the public itself, small shopkeepers, wholesalers or supermarkets, have reported confusion to either side. No buyer suggested to Robertson's, when the product The label reproduced here does not have the word "New" in a flash on it - Ed. Downloaded from by Makerere University user on 03 September 2019
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288 Jacob J. British Sugar Pic v. [1996] R.P.C. James Robertson & Sons Ltd. was presented, that there might be confusion. I think there is none. Indeed it would be surprising if there were any; they have different primary purposes (topping rather than spread), different presentations and both products are sold with their house trade marks, Silver Spoon and Robertson's, prominently 5 displayed. Things might perhaps be different if "Treat" were firmly established as a trade mark - almost a household name, but, as will be seen, I do not think it is. I cannot think that Robertson's use of "Treat" causes British Sugar any commercial harm. Indeed whatever the name of the Robertson's product I doubt whether it would have much effect on the Silver Spoon syrups. By and large one 10 is not in practice a substitute for the other (see below). Nonetheless if there is trade mark infringement and the mark is validly registered, Robertson's must stop using 'Treat". It is to these issues I now turn. It was agreed that the points arising are as follows: 15 (a) Does the Robertson product fall within the specification of goods for which the mark is registered? (b) Must the defendant use the mark as a trade mark to fall within 20 section 10(1) or (2)? (c) If so, is there infringement pursuant to section 10(1)? (d) If so, is there infringement pursuant to section 10(2)? 25 (e) In either event is there a defence under section 11 (2)? (f) Is the registration valid? 30 (a) The Specification of Goods There are two points here. First, is the Robertson product a "dessert sauce or syrup"? British Sugar say it is. The small print on the back of the jar says: 35 "Toffee Treat is delicious at breakfast, with desserts or as a snack anytime. Spread Toffee Treat on bread, toast or biscuits, spoon it over yoghurt or ice- cream or use as a filling for cakes." So, say British Sugar, the product can not only be used on a dessert, but 40 Robertson's positively suggest this. Thus, even if the product has other uses, it is, inter alia, used on desserts. Moreover when so used it is a sauce - see the dictionary definition of "sauce", viz: "Any preparation, usually liquid or soft, intended to be eaten with food as a 45 relish." It does not matter if those other uses are much commoner: the fact that the product can be used as a dessert sauce means it is one.
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  • Fall '19
  • The Land, Makerere University, SONS LTD, James Robertson, Jacob J

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