Harrods Limited v Harrodian School Limited

Passing off protects goodwill attached to goods or services, rather than conferring a monopoly over a name or get-up. The claimant must prove goodwill or reputation, a misleading representation, and actual or likely damage to goodwill. A business connection is actionable only where the public would suppose that the claimant had accepted responsibility for the quality of the defendant’s goods or services. Mere sponsorship or financial support will ordinarily be insufficient. A common field of activity is not required, but its absence remains highly relevant and makes proof of confusion and damage more difficult. Actual confusion is relevant but not essential. Damage to reputation without likely damage to goodwill does not sustain the claim.

Harrods Limited appealed from Harman J’s judgment of 13 May 1994, which dismissed its passing-off action. Harrods operated a department store and alleged that the defendants’ use of the name The Harrodian School for a preparatory school in Barnes suggested a connection with Harrods and threatened its goodwill. The trial judge rejected allegations that the defendants had deliberately deceived Harrods or intended to trade on its reputation, and found no real likelihood of confusion. The central issues were whether the name conveyed an actionable connection and whether any confusion was likely to damage Harrods’ goodwill.

1. Majority disposition. Lord Justice Millett and Lord Justice Beldam dismissed the appeal with costs. They upheld the finding that there was no real likelihood of actionable confusion and no real likelihood of more than minimal damage to Harrods’ goodwill. The application for leave to petition the House of Lords was refused.
2. Passing off. The majority adopted the three-part analysis in Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491: goodwill or reputation attached to the claimant’s goods or services; a misleading representation; and actual or likely damage. The protected property is the goodwill of the business, not a proprietary right in the name itself.
3. Relevant connection. A connection between businesses is insufficient unless the public would infer that the claimant had made itself responsible for the quality of the defendant’s goods or services. Sponsorship or financial support ordinarily does not convey that responsibility. A common field of activity is unnecessary, although the absence of overlap is an important factor and creates a heavy burden in proving confusion and damage.
4. Application. The name Harrodian suggested some association with Harrods, but not the relevant connection. The school was not presented as owned, managed, supervised or controlled by Harrods. The relevant public was not confined to prospective parents, but the judge had not made the alleged error in identifying it. The absence of actual confusion was relevant, and the evidence supported the trial judge’s conclusion.
5. Intention and damage. Intention to deceive was unnecessary, although the reason for choosing a name was highly relevant. The majority accepted the trial judge’s finding that Sir Alford had chosen the name because of the site’s history, not to exploit Harrods’ reputation. Damage to reputation without likely damage to goodwill was insufficient. A hypothetical scandal at the school did not establish a real likelihood that Harrods’ customers would withdraw or reduce their custom.
6. Dissent. Sir Michael Kerr would have allowed the appeal. He considered that Harrodian appropriated part of Harrods’ goodwill, inevitably suggested a connection, and created a sufficient risk of confusion and damage through loss of control over Harrods’ reputation.

1. Court of Appeal (Civil Division) dismissed the appeal from Harman J’s judgment, with costs, and refused leave to petition the House of Lords: [1996] EWCA Civ 1315.
2. High Court (Harman J) dismissed Harrods Limited’s passing-off action after trial on 13 May 1994. No citation for that judgment is stated in the judgment under review.