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I am confused about the answer of the following two questions.
1.Which TWO of the following about the tort of passing off are true?
A The defendant must prove that goodwill exists in the name being passed off
B Customers must understand who they are buying good from
C Damages for loss of trade may be awarded
D The claimant must prove there has been a misrepresentation by the defendant
The answer is BD , but I think it may be AD.
2.Bill has been accused of committing a criminal offence.
Which TWO of the following statements about Bill are correct?
A His guilt may be decided by a jury
B His guilt must be proven in the balance of probabilities
C If he is found liable a prison sentence may follow
D His case may be heard in the magistrates’ court
The answer is AC. But I don’t know why it may not be heard in a magistrates’ court.
Could you please kindly explain these for me? Thank you very much.
For question 1 option A makes no sense! The defendant in a passing-off case is the ‘naughty’ party that is trying to get some benefit from using a similar name. To be a sensible option, it would have to be the claimant that has to prove the existence of goodwill
For question 2 I believe that the option C is incorrect – in a criminal case, if found against the alleged criminal, the expression is ‘guilty’ not ‘liable’
So, if option C were to be correctly worded, it would be worded as “If he were to be found guilty ….”
I’m therefore agreeing with you … I believe that the correct two should be options A and D