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Starbucks (HK) Ltd and others v British Sky Broadcasting Group plc and others
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1 User Commentary

Melanie Davidson (In-house lawyer) 28 September 2015

Case Digest: Starbucks (HK) Limited and Another v British Sky Broadcasting Group PLC and Others [2015] UKSC 31

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Whether a claimant seeking to maintain an action of passing off need only establish a reputation among a significant section of the public within the jursidiction, or that such a claimant must also establish a business with customers within the jurisdiction.

Judgment was handed down in the case of Starbucks (HK) Limited and Another v British Sky Broadcasting Group PLC and Others [2015] UKSC 31 on 13 May 2015. The case was brought by Starbucks (HK) Limited and Another (“PCCM”), an internet protocol television (IPTV) provider, against the use of the “NOW TV” name by the Sky group in connection with its own over the top IPTV service. The issues in this appeal are of particular significance in an age of proliferating global electronic communication, and highlight the disparities in the jurisprudence of common law countries on this issue.

Lord Neuberger gave a unanimous opinion with which Lord Sumption, Lord Carnwath, Lord Toulson and Lord Hodge agreed. 

The central issue at hand was whether there existed a significant goodwill (“customer base”) or reputation in the jurisdiction of the court, in a business in the supply of goods or services; see e.g. AG Spalding & Bros v AW Gamage Ltd (1915) 32 RPC 273 where Lord Parker confirmed it has to be more than a “mere reputation”, Star Industrial Co Ltd v Yap Kwee Kor [1976] FSR 256, 269 and Inland Revenue Commissioners v Muller & Co’s Margarine Ltd [1901] AC 217, 235. It is now a long-established principle that goodwill is one of the three essential elements of passing off; as described by Lord Oliver in Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491.

Having considered jurisprudence from across the common law world, Lord Neuberger considered that the appeal should be dismissed on the same ground on which the courts below decided. PCCM’s business is based abroad, it has no customers and therefore no goodwill in the UK. The mere existence of people in the jurisdiction of the court will not equate to evidence of goodwill, even if they are customers of the claimant when they go abroad; Anheuser-Busch Inc v Budejovicky Budvar NP [1984] FSR 413, 462 applied. 

Appeal dismissed. 

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