We would like to raise awareness on the problem of passing off of goods that are flooding our markets and which has gone unnoticed by relevant consumer for far too long. We feel that Ni Vanuatu citizens needs to make responsible decisions on the items they buy from the shop rather than being lured by cheap products that are not in conformity with the rules of fair trade in Vanuatu. We are putting out this awareness because we care for the simple ni-vans who have been tricked and the trade related aspect of intellectual property.
What is a passing off? A passing off is an infringement of owners right similar to trademark, but applies to protect unregistered rights associated with a particular business, its goods or services. Its elements outlined in the case of Warnink v Townend & Sons((Hull) (1979) A.C. 731 are:
1) a misrepresentation
2) made by a trader in the course of trade
3) to prospective customers of his or ultimate consumers of goods or services supplied by him
4) which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence) and
5) which causes actual damage to a business or goodwill of a trader by whom the action is brought or will probably do so.
Vanuatu have a binding case law on passing off in the case of Vanuatu Mission of the Seventh Day Adventist Church v Seventh Day Church of the Republic of Vanuatu [1996] VUSC 19; Civil Case 057 of 1996 (19 September 1996). The court ruled in favour of VMSDA saying that the defendant’s use of the plaintiff church's name is a misrepresentation to the public leading to the tort of passing-off which damages the plaintiff church in its commercial or quasi-commercial activities. Therefore, misrepresentation that amounts to passing off is that which invades and damages the rights to property, the property being in the business or goodwill likely to be injured
Now let us look at some of the actual examples of passing off around town as of 29 August, 2019. Solomon Blue and Waioka are the two most injures businesses that are being misrepresented by fake product in Vanuatu. The similarities in the name and labelling are so striking that they are likely to cause confusion in the relevant consumers mind to believe that they are buying either Solomon Blue or Waioka from a cheap outlet.