solved Paper instructions : You have received the following memorandum from

Paper instructions : You have received the following memorandum from your supervising solicitor in the IP Department of your firm. MEMORANDUM To: Trainee From: Alba Rino Reference: QED2854/7Client’s name: Quincer Elixir Drinks Limited Client’s matter: Quincer Elixir Drinks Limited Date: [Today’s date] I have been contacted by Carmen Airey. She and Cab Ernest are directors of Quincer Elixir Drinks Limited (“QED”) for whom we act. QED is a medium sized drinks retailer which sources beverages from innovative manufacturers/suppliers around the world and sells them via high-end food outlets in England. QED takes great care to source only from upcoming trendy manufacturers/suppliers. As a result their brand has recently become in demand with cash-rich food and drink enthusiasts. One line of products, a range of 100ml freshly pressed juices blended with spices, such as quince, pea and rhubarb juice spiced with fennel and Habanero chili extract, sold as Quincer, has been particularly successful and has become a real income earner for QED. You may have seen these in upmarket food-halls at Harridges, Lodges & Masons or Selfedges, in some supermarkets such as Forum or St Michael’s, and specialist delicatessens as they have a distinctive triangular translucent bottle and metallic green label and top. Carmen phoned me yesterday to say that she is worried about a call she has just had with Monty Pulciano (“Monty”). Monty is the managing director of Quencher Limited (“Quencher”) which markets a number of drink products in geometric packaging which are sold in England in supermarkets and some sandwich outlets. Its top seller is a line of products labelled as Quencherz with fruit, pulses and vegetable juices blended with exotic spices, sold in translucent rhomboidal bottles with a turquoise label and top. Carmen told me that Monty was irate and blamed her for ‘plundering his market’. He said that sales of Quencherz have declined in the last six months of trading in the London area in particular and he is sure it is because customers are buying Quincer under the impression they are Quencherz as the products have similar names and are sold in similar packaging. He finished the conversation antagonistically, stating he would sue QED for ‘passing off’ unless QED ceased and desisted selling Quincer products. Carmen is unclear about what Monty meant by this and has asked us to advise. Carmen told me that she and Cab have only just become aware of the existence of Quencherz. She agrees with Monty that the packaging of the two products is similar, particularly on first sight, as both have distinctive angular bottles with greenish tops, as well as having similar sounding names. However, on closer inspection Quincer bottles have the motto ‘Nunc Est Bibendum’ in ‘Informal Roman’ font above the name, whereas Quencherz have the motto ‘Aliquid ei bibendum est’ in a different font on the bottom of the label. L1497 Page 3 of 3 © The University of Law Limited 2020-2021 Carmen is adamant that the regular customer would not confuse these products as they are sold to different types of customer in different outlets, Quincer retails in more upmarket food-halls and affluent delicatessens whereas Quencherz tend to be sold to supermarkets and the city/town centre sandwich outlets ‘LeSandwich à Midi’ and ‘Urbane Smörgåsbord’. However, she understands that Quencher is a trading company with a reputation for ruthlessly dispatching competitors by proactively protecting its brand. Carmen needs our advice on QED’s position on a possible passing off action and what steps it can take to protect itself. Quincer and Quencherz are not registered trademarks and our client does not want advice on trademark registration. Please use our standard format of email and report to cover all of the issues and your advice.