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To: Carmen Airey

From: Trainee & Alba Rino

Department: Department of Quincer Elixir Drinks Limited

Subject: Advice on Passing off and Defense Mechanisms

Dear: Madam

We are writing to advise the way forward concerning possible accusations on QED’S position on a possible passing off and measures to take to prevent such atrocities.

First, for an organization to have the same features like a different company, discussions led to the given consent; a possible passing action in the matter between Quencher and QED is highly encouraged. There may be a possible passing off action from how Monty ended the call—considering the complaint raised, QED adopted the same packaging as Quencher to confuse customers. Carmen, too, agreed that the packaging was similar; hence, it creates a chance for Monty to sue QED possibly. Besides, Quencher Limited is known for its habit of ruthlessly dispatching competitors who may seem to jeopardize its competitive advantage in the market. Monty’s actions may be unpredictable but certainly negative from the way he was irate and brought up accusations on market plundering.

According to the packaging that may not be distinguished at a long-range, Monty and Quencherz can use the misrepresentation aspect as a remedy to subjecting QED into passing off actions. Resemblance confuses customers at times; when a consumer is used to a particular product while shopping, it is rare for one to consider the product’s features. Misrepresentation can be strong when the two products are compared at a close range, and then a customer is told to differentiate the two without considering the motto. The motto is a minor feature that requires this might be used as a possible passing off action against QED.

For a passing off to occur, Monty must first request an investigation to verify the loss. It is evident from the reduction of customers purchasing Quencher’s products. Monty claims that the company has lost customers to QED since the packaging confuses them of buying products they think are the same. The company is experiencing a market plundering hence losses. With this data alone, the company can easily raise a passing off issue to the court.

Also, profit loss is one factor that the company will consider initiating a passing-off action. The company has lost a tremendous number of customers that accounted for the losses. Losses are an isle to diminished profits, a significant matter in raising a passing-off action. It is proof enough that the company’s imitation is causing havoc to Quencher’s operations. If perhaps Monty decides to use profit loss as a remedy for ensuring that QED is dispatched from the industry or reduce its functionalities. Since Quencher’s goods are losing customers and laying on the stores’ shelves, the more they stay, the high chances of going bad. Damaged goods part of remedies applied in initiating a passing-off action. It will not be a surprise if Monty’s company uses the remedy to destroy the operations of QED.

Prevention Strategies

However, preventing the company from passing off a complaint from Quencher is possible. Although winning over such a case is not always guaranteed depending on the company’s evidence. Looking at the remedies needed to complete an application of complaint action, Monty has to produce evidence of damaged products and the extent of loss experienced since the competitive advantage was sabotaged. Quencher does not have the statistics that prove it is QED that made it experience a market plundering. Monty came up with an assumption claiming that the loss of customers resulted from the resemblance in packaging. QED can prevent passing off a complaint from Quencher by asking for detailed data proving that all the losses reported in the company were that the packaging of products is similar.

Secondly, QED does not produce the same products as Quencher; thus, the packaging is not confusion but a comparison of products as fair competition. QED will prove that the market operations are not of the same name and same products; more, the packaging has a difference when experimental art a closer view. QED has a different motto from what Quencher possesses. The goods also are sold in different areas and have different customers. A customer who wants to buy passion juice can not take orange juice and subjects; it was confusion from the packaging.

Moreover, Monty’s action took a while; from the rule of passing a company, the response to the consequences must be immediate. Monty took time to confront QED on the matter concerning misinterpretation, and he waited to record loss to react. His reactions are out of assumptions made, and that does not imply that he’s responded immediately after noting there was an issue with the packaging done in the company. With this, QED can stick to the matter that Quencher delayed in alerting the company. The operations have grown, and the customer establishes a source of refuge in terms of product preference.

Another defence mechanism is the two companies name, Quencher and Quincer, have no similarities but may sound the same. Passing on how the rule of passing off follows, Quencher established its name, and on the products, the name presented will be the defendants own name. The law says if the defendant’s name has no insignificant impact on complaints operation, then passing off such a company is not a considerable action. Quincer only sounds like Quencherz but the pronunciation and letters used do not perfectly match.

The company can still prevent any passing off an action through clinging with the misrepresentation defence. The packaging was not done to fool the customers into purchasing Quencher products, thinking it was QED’s. The main reason the packaging happens to some who resemble Quencher’s products was due to the sense that there was no awareness that a company like Quencher packaged its good in the same manner. Besides, the QED had no idea of Quencherz existence; the company’s existence came after the call was made. The only action against the law of the industry would have been misrepresenting products to the customer.

Defense mechanism through company positioning

Additionally, Quince Elixir Drinks Limited is in a position that is already challenging the competitor, which has initiated a platform of worries hence the threatening call from the managing director of Quencher Limited, Monty. So about the positioning, Monty thinks that his company’s operation in the market is deteriorating from what seem to be QED’s cause. Although Carmen says she had no idea of Quencher’s existence, it would be a problematic case to handle from the fact that Quencher limited was established before QED. Handling the similarity in packaging would fall on Quencher’s benefit. If sued, the company would lose most of its consumers. To limit the chances of downfall due to the current positioning, QED has to establish a unique selling position but beneficial in market competition.

Although the current positioning may seem productive, leading to Monty’s concern, QED can retain the same competitive advantage by developing a strategy of minimal packaging similarities. As per the current position, its only weakness has the same packaging mechanism as a competitor. Dealing with the weakness would allow room for expansion and competitive advantage without explaining to the competitor at facing a court trial of a forgery in packaging or product. The advantage of QED is the difference in products. Also, Quencher has a diverse market, while QED only establishes in England. QED can use the two differences to formulate a positioning statement.

A positioning statement would help determine the standard advantage of QED products to the target consumers. It will be formulated by deciding on how the brand is expected to be comprehended. The positioning statement will ensure that the consumer goals are identified through market research. In Quencher Limited’s case, QED has to figure out the significant differences between what it offers and what Monty’s company dwells. Besides, consumers had grown to a satisfying point; now that there has been an issue in the packaging, the consumers need to understand the real difference between QED and Quencher Limited’s products. As much Monty suggests initiation, the products will speak the customer language by providing the same taste that motivated them to come back for more.

After recognizing a unique selling position and a positioning statement, the QED should pick on a positioning based on the industry’s competition. It is the best strategy where the company will use competition as a distinct point for differentiation. The problem was that the two companies had a similarity based on the packaging of the products. To make the products more favourable to customers and unique, the company has to formulate a mechanism that would prove similar to others. It has to be known by a special deal or feature in the products offered.

Changing the products is unnecessary since the first step that made the company attract customers from Quencher Limited is the products, not the packaging. If the packaging were the key point of attracting consumers, they would have continued using Quencher Limited’s products. Through your leadership, the company should deliver value through customer confidentiality, product oversight and operational quality.

In conclusion, wee are certain that the only mechanism which Quencher’s manager might follow in initiating a passing off case is through the stated law remedies. As a company, we can prevent it from happening and change the course of operations by adopting a different strategy for the company.


Trainee & Alba Rino

Quincer Elixir Drinks Limited


Ellis, L. (2020, February 26). Passing off claims: IP rights (Defences & remedies) – London solicitors. Technology Solicitors London: IT Lawyers, Software, IP Law Firm. Retrieved March 18, 2021, from https://hallellis.co.uk/passing-off-claims/

Hopper, D. (2021, March 6). Positioning: 5 strategies to stand out from your competitors. Medium. Retrieved March 18, 2021, from https://medium.com/swlh/positioning-5-strategies-to-stand-out-from-your-competitors-bb3ba93e4a69

Kopp, C. M. (2021). Understanding product differentiation. Investopedia. Retrieved March 18, 2021, from https://www.investopedia.com/terms/p/product_differentiation.asp

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