Remedies for passing off: Marmite Vs the BNP

The common law tort of passing off is not easy to prove, in the circumstances where it is established some of the remedies for the claimant include:

  • (The obvious and most common), damages which are likely to be minimal if it is proven the defendant had no malicious intent or knowledge .
  • An account of profits.
  • An order to cover up marks or repackage.
  • An order for delivery up or destruction of the offending items.
  • An injunction.

 An example of an injunction is illustrated in a 2010 case (Unilever Plc v Griffin [2010] F.S.R. 33 Official Transcript)involving a dispute between the British National Party and the owners of the Marmite brand (Unilever Plc). Unilever applied for an interim injunction in relation to intended proceedings against the BNP for trade mark and copyright infringement and further an action for passing off.

The BNP had planned to broadcast a promotional video for their political party and had posted a preview of this video on their website. The preview featured an image of a Marmite jar, at the start of the clip the jar of Marmite was displayed alongside the BNP logo and the end of the clip the jar appeared alongside the slogan “Love Britain vote BNP”.

Upon discovery, Unilever contacted the BNP to have the clip removed and an assurance given that the marmite jar would not feature in the full election broadcast, the BNP complied, however did not provide a formal undertaking to that effect. Unilever therefore applied for an injunction to prevent all use of its brand on the basis that it was likely to succeed at trial for an action for passing off.

The application for the injunction was granted for the following reasons:

  • The BNP’s use of the marmite jar was likely to deceive the public into believing that Unilever was a sponsor of the controversial (racist) political party, this in turn would have caused considerable damage to the brand.
  • It was highly arguable that any association with the BNP would cause serious and irreparable damage to the repute of the Unilever brand in general.

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