Erven Warnink BV v. Townend & Sons Ltd (ADVOCATE CASE / “Advocaat Case”)

“A trader cannot pass off his inferior product as another’s genuine article — the law protects honesty in commercial reputation.”

Short Description

This landmark UK case established the modern multi-factor test for extended passing off, recognizing that even a descriptive term associated with a class of high-quality products can attract legal protection when the public relies on its reputation. Warnink, the producer of genuine Dutch advocaat, claimed Townend was selling a cheap imitation under the name “Keeling’s Old English Advocaat,” misleading customers.

Facts

Warnink produced authentic advocaat made from eggs, brandy, and sugar according to traditional Dutch methods. Townend began manufacturing a much cheaper drink using wine and calling it “Old English Advocaat.” Warnink argued that customers believed it to be genuine advocaat. The issue was whether “advocaat,” though descriptive of a category of drinks, had a protectable goodwill that could prevent such misrepresentation.

Findings / Reasoning

The House of Lords held that even descriptive names can gain strong goodwill if consumers associate them with specific quality standards. Lord Diplock set out five elements for extended passing off: (1) misrepresentation, (2) made in the course of trade, (3) to prospective customers, (4) damaging the plaintiff’s goodwill, and (5) causing actual or probable harm. The court found Townend’s product misleading because it exploited the reputation of genuine advocaat.

Suggestions / Observations

The court emphasized that traders cannot hide behind descriptive terminology to market inferior substitutes. Protection is needed to preserve trust in product categories and prevent dilution of reputation in industries where quality standards matter. Clear labeling, transparent marketing, and avoidance of suggestive names are essential to avoid liability.

Judgment & Date

The House of Lords ruled in favor of Warnink, holding Townend liable for extended passing off.

Judgment Date : 1979 (UKHL).