The Ol' Bait And Switch: Does It Cause Confusion?

A recent UK judgment on so-called "bait and switch" is worth a look. What is interesting about it is that the overall approach adopted by the UK court is similar to that adopted by the South African Supreme Court of Appeal a few years back, namely one that is both robust and pragmatic.

The UK bait and switch case is Pliteq Inc & Another v iKoustic Ltd and Another. Bait and switch has been described in a previous court case as follows: where the "defendant deliberately uses the claimant's trade mark as a bait to attract the consumer's attention and then exploits the opportunity to switch the consumer's purchasing intention to his own product." Bait and switch is clearly something that should be unlawful. As the judge in one UK case said, "bait and switch selling can be prevented on the basis that the process of buying goods and services should, from selection through to purchase, be free of distorting effects of confusion."