One more outing for Arsenal: a case of dilution or one for restitution?

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Legal context. This note, which comments on the preceding piece by Susie Middlemiss and Steven Warner, deals with the implications for the future development of passing-off of the dicta of Aldous LJ in Arsenal v Reed, which are considered there.

Key points. The article concludes that Aldous LJ was unlikely to have been contemplating the introduction of a common law doctrine of trade mark dilution, or any other extension to passing-off which would remove misrepresentation from its central position as one of the essential elements of the Classical Trinity, and that the existing state of the authorities rules out any such development by the Court of Appeal.

Practical significance. It is tentatively suggested that an extension of existing passing-off principles to cases of pure unjust enrichment may have been what Aldous LJ had in mind, and that this would not necessarily be too radical a step for the common law to accommodate.
Original languageEnglish
Pages (from-to)143–147
Number of pages4
JournalJournal of Intellectual Property Law & Practice
Issue number2
Publication statusPublished - 2006

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