This case confirms the availability of passing off where products have established goodwill and fall within a sufficiently well defined class of goods.

In this case, Diageo, who own a number of well known alcoholic drink brands, including SMIRNOFF, brought passing off proceedings against Intercontinental Brands (IB), who sold a vodka and fermented alcohol drink by the name of VODKAT. 

It was held that IB had passed off VODKAT as vodka and that all the elements of passing off were satisfied, namely that:

-          The term ‘vodka’ has established goodwill and describes a clearly defined class of goods as defined in European legislation (now Council Regulation No.110/2009/EC) as "a spirit drink produced from ethyl alcohol of agricultural origin…..minimum alcoholic strength by volume of vodka shall be 37.5%".

-          IB misrepresented that VODKAT was vodka (rather than just contained vodka) by way of the marketing methods employed.  This was because the packaging made the product look like vodka (and did not clearly describe the product), supermarkets had not been instructed that VODKAT should be displayed away from the vodkas and IB had not educated the public as to the nature of the product.

-          The public had been confused into thinking that VODKAT was vodka.

-          Diageo had suffered damage by way of lost sales and also because VODKAT was liable to diminish the distinctiveness of vodka.