Fox booted out — abandonment of goodwill bars defence of honest concurrent use

Where a company restarted use of a device that had been used by another company that had closed its operations more than 40 years earlier, the present-day company could not use the earlier but now extinguished goodwill as a defence to a passing off action brought by an unrelated trader using a similar device.

The parties had a ‘common ancestor’ as both derived their use of the fox and boot device in question legitimately from the same source.

After the defendant acquired the goodwill and other rights in the device in 1964, the UK business was shut down. The defendant took no steps to preserve the UK business (which the vendor had taken active steps to shut down) or to educate the public that it was the successor to the now-defunct business…

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