Reckitt & Colman Ltd v Borden Inc — popularly known as the Jif Lemon case — is a landmark decision of the House of Lords that reaffirmed the classic three-part test for establishing a passing off claim. The judgement remains one of the most cited authorities in English law on the protection of unregistered trademarks and the concept of goodwill. It clarified that the tort of passing off protects a trader’s reputation and prevents others from misrepresenting their goods or services as those of the claimant.
Passing off is a common law tort created by judges to prevent unfair competition. The remedies available in such cases include injunctions, delivery up of offending goods, and damages or an account of profits. The essence of the tort lies in preventing one trader from misrepresenting his goods as those of another, thereby protecting the goodwill built up in the claimant’s business.
Background of Reckitt & Colman Ltd v Borden Inc
The dispute in Reckitt & Colman Ltd v Borden Inc centred on lemon juice sold in distinctive packaging. Reckitt & Colman marketed their lemon juice under the brand name “Jif Lemon” in a yellow plastic container shaped like a lemon. This packaging had been used since 1956 and had become easily recognisable to consumers. The get-up of the container, in particular its colour, texture, and lemon-like shape, was a distinctive feature of the Jif Lemon case.
Borden Inc, a competitor, produced its own lemon juice in a similar lemon-shaped plastic container, slightly larger with a flattened side. Reckitt & Colman alleged that Borden’s use of such packaging amounted to passing off, as it would likely mislead the public into believing that Borden’s product was the same as, or connected with, their Jif Lemon product.
The trial court ruled in favour of Reckitt & Colman, and the Court of Appeal upheld the decision. The case was then taken to the House of Lords, where Reckitt & Colman Ltd v Borden Inc became the definitive authority on the law of passing off.
Facts of Reckitt & Colman Ltd v Borden Inc Case
Since 1956, Reckitt & Colman and its predecessors had been selling lemon juice in a yellow, lemon-shaped plastic container under the “Jif Lemon” brand. Over time, the unique shape and colour of the packaging became strongly associated with their product. Consumers came to identify the lemon-shaped container with Jif Lemon juice, which was widely available in supermarkets across the United Kingdom.
Borden Inc, an American company, had been selling lemon juice in the United States under the brand “ReaLemon”. It too used a lemon-shaped plastic container. By 1975, Borden entered the UK market, initially selling its ReaLemon juice in bottles. By the end of 1980, the company had captured approximately 25% of the UK lemon juice market.
In 1985, Borden began selling its ReaLemon product in the UK in a lemon-shaped plastic container similar to the Jif Lemon design. This prompted Reckitt & Colman to bring proceedings, claiming that Borden’s packaging constituted passing off by misleading the public into thinking that ReaLemon was associated with Jif Lemon.
The lower courts found in favour of Reckitt & Colman, and Borden appealed to the House of Lords, which ultimately upheld the earlier rulings.
Issues
The main issue before the House of Lords in Reckitt & Colman Ltd v Borden Inc was whether Borden’s use of a lemon-shaped container for its ReaLemon product amounted to passing off by creating a likelihood of confusion among the public.
The Court had to determine:
- Whether Reckitt & Colman had acquired goodwill or reputation in their distinctive packaging.
- Whether Borden’s lemon-shaped container amounted to a misrepresentation likely to deceive consumers into thinking the goods were those of Reckitt & Colman.
- Whether Reckitt & Colman had suffered or were likely to suffer damage due to the misrepresentation.
Reckitt & Colman Ltd v Borden Inc Judgement
The House of Lords, in Reckitt & Colman Ltd v Borden Inc, upheld the decisions of the lower courts and granted a permanent injunction preventing Borden from marketing lemon juice in lemon-shaped plastic containers in the United Kingdom.
Delivering the leading opinion, Lord Oliver reaffirmed the three essential elements of passing off, often referred to as the “classic trinity” or “tripartite test”:
- Goodwill or Reputation – The claimant must prove that the goods or services have acquired goodwill or reputation in the marketplace such that they are identified by the public as those of the claimant.
- Misrepresentation – The defendant must have made a misrepresentation, whether intentional or not, leading or likely to lead the public to believe that their goods or services are those of the claimant.
- Damage – The claimant must demonstrate that the misrepresentation has caused, or is likely to cause, damage to the claimant’s goodwill.
At page 880 of the judgement, Lord Oliver summarised this test, which has since become the foundation for all passing off cases in the UK.
Reasoning in Reckitt & Colman Ltd v Borden Inc
Lord Oliver’s reasoning in Reckitt & Colman Ltd v Borden Inc emphasised the need for clear evidence of goodwill and the likelihood of confusion. He examined whether the distinctive lemon-shaped container had become associated in the public’s mind specifically and exclusively with Jif Lemon.
The Court referred to consumer survey evidence submitted by Reckitt & Colman, showing that housewives presented with both Jif Lemon and ReaLemon products were likely to pick up the ReaLemon product believing it to be Jif Lemon juice. The Court also noted that supermarkets generally stocked only one brand of preserved lemon juice, reinforcing the likelihood of confusion.
Lord Oliver formulated three specific questions to assess the case:
- Have Reckitt & Colman proved that the get-up of their lemon juice has become associated in the minds of the public specifically and exclusively with Jif Lemon juice?
- Does Borden’s packaging amount to a representation that their product is Jif Lemon juice?
- Is it likely that, if Borden is not restrained, a substantial number of consumers will be misled into purchasing ReaLemon in the belief that it is Jif Lemon?
All three questions were answered affirmatively. Consequently, the House of Lords held that Borden’s product amounted to a misrepresentation causing potential damage to the goodwill of Reckitt & Colman.
The Court thus concluded that all three limbs of the passing off test were satisfied. A permanent injunction was granted restraining Borden from selling lemon juice in lemon-shaped containers in the UK.
Conclusion
Reckitt & Colman Ltd v Borden Inc is a cornerstone of modern passing off law. The case clarified the boundaries of the tort and provided a structured, three-stage test that continues to guide English courts today.
In affirming the injunction against Borden, the House of Lords underscored that misrepresentation through similar packaging can amount to passing off even where no registered trademark exists. The decision in the Jif Lemon case has since served as a reminder that goodwill, reputation, and the distinctiveness of presentation are valuable business assets deserving of legal protection.