Dear All,
there has been attempted resolution of the LESA USA issue by competent hands such as Cardinals, Archbishops, Principals etc but to no avail. I thought I might contribute my little 2 cents in it provided I can escape the attacks that might result from it.
I thought it might be appropriate to look at the issue generally and holistically before introducing any legalese which might make it too recondite for the average member of my readership.
FACTS:
I confess that I have not been briefed on the facts and the facts I have are gleaned from the internet. They might not be correct since I do not read all the mails. My understanding is that LESA USA Alumnae existed and due to some misunderstanding, LESA USA INC was created by some former members of LESA USA ALumnae. Both organisations are carrying out good causes for Lourdes in Bamenda and perhaps for their members. Both must be commended for the good work done and pehaps being done.
GENERAL VIEW
The first question that comes to mind is "Is it desirable to have only one organisation representing Lourdes ex students in America?". The answer is probably YES. The next question is "Is it mandatory to have only one organisation representing Lourdes ex students in America?". The answer is probably NO. In the UK, we have Bali Women Association. Due to differences, another Bali Women Association was formed. The two have been co-existing for years without any problem. Both are into good causes for Bali village.
The lesson from the above is that one organisation is preferable but if it cannot work, then two or more can co-exist but they should try to respect one another and try to co-ordinate their efforts so that the fruit of their labour should not be duplicity.
ANY ACTIONABLE TORT SO FAR?
there has been attempted resolution of the LESA USA issue by competent hands such as Cardinals, Archbishops, Principals etc but to no avail. I thought I might contribute my little 2 cents in it provided I can escape the attacks that might result from it.
I thought it might be appropriate to look at the issue generally and holistically before introducing any legalese which might make it too recondite for the average member of my readership.
FACTS:
I confess that I have not been briefed on the facts and the facts I have are gleaned from the internet. They might not be correct since I do not read all the mails. My understanding is that LESA USA Alumnae existed and due to some misunderstanding, LESA USA INC was created by some former members of LESA USA ALumnae. Both organisations are carrying out good causes for Lourdes in Bamenda and perhaps for their members. Both must be commended for the good work done and pehaps being done.
GENERAL VIEW
The first question that comes to mind is "Is it desirable to have only one organisation representing Lourdes ex students in America?". The answer is probably YES. The next question is "Is it mandatory to have only one organisation representing Lourdes ex students in America?". The answer is probably NO. In the UK, we have Bali Women Association. Due to differences, another Bali Women Association was formed. The two have been co-existing for years without any problem. Both are into good causes for Bali village.
The lesson from the above is that one organisation is preferable but if it cannot work, then two or more can co-exist but they should try to respect one another and try to co-ordinate their efforts so that the fruit of their labour should not be duplicity.
ANY ACTIONABLE TORT SO FAR?
The question that falls to be determined is whether any actionable tort has been committed, who is the tortfeasor and who has to bring any action if any.
We have heard of patents, trade mark of the word LESA USA etc. Without going into the patentability of LESA USA, I asked myself if any actionable tort might have been committed. The only answer that readily comes to mind is the actionable tort of "Passing Off".
In law, "Passing Off" is when A sells his own goods under the pretence that they are the goods of another man. To succeed in an action in "passing off", there are 3 elements to show i.e. 1) misrepresentation, 2) calculated to injure the goodwill of another, 3) causes actual damage or likely to cause actual damage to business or goodwill of the other.
To explain the above, it might be germaine to use some examples. In Bollinger v Costa Brava Wine Co Ltd (Ltd)(1959), French Champagne producers successfully claimed against producers of "Spanish Champagne" because of the use of Champagne for drinks that had nothing to do with the area of Champagne in France. An issue might be that of donors being confused between LESA USA INC and LESA USA Alumnae. Similar cases are Venie Products Ltd v Mackenzie & Co (1967) and Jonnie Walker & Sons v Henry Ost & Sons Ltd (1970).
Can an action for "passing off" against LESA USA INC succeed (assuming they came into existence after LESA USA Alumnae)?
The tort of "passing off" is not to limit competition. LESA USA INC can be formed to compete in the same market with LESA USA Alumnae to raise money for good causes.
For an action for "passing off" to succeed, LESA USA Alumnae has to show that they had developed a goodwill in the USA that needs to be protected. Goodwill is the benefit and advantage of the good name, reputation and connection of a business. Goodwill is different from reputation. LESA USA Alumnae has been raising money in the US for years and clearly must have developed some goodwill in the US market so this part of the requirement might have been or appears to be satisfied.
The second requirement to succeed is that there must be misrepresentation. On the LESA USA case, this might be the crux of the matter. To be actionable in "passing off", the misrepresentation must be material. The deception must be more than momentary and inconsequential (Cadbury-Schweppes Co Pty Ltd v Pub Squash Pty Ltd (1981)). The misrepresentation should be one that is leading or likely to lead the public to believe that the goods or services offered by A are the goods or services of B. In order words can a donor who had known of LESA USA Alumnae donating to LESA USA INC be mistaken to think that he is donating to LESA USA Alumnae considering that they are operating in the same market, both have LESA USA in their names and both base their existence on the same school Lourdes Mankon?. Can the public reasonably assume that LESA INC USA is the same, or is connected to LESA USA Alumnae?. It is necessary that a substantial number of donors be misled or are likely to be misled to think that LESA USA INC is the same or is linked to LESA USA Alumnae.
Another question that needs to be settled is whether name LESA USA is a generic name that lacks the distinctiveness that is necessary for an action of "passing off"?. It is my opinion that whilst LESA might be a generic name, LESA USA might not be.
The third and last element required is damages. Has LESA USA Alumnae suffered any damages or likely to suffer a damages as a result of LESA USA INC using the LESA USA name?. This is a matter of fact that has to be proven. There are various forms of damage including damage for lost business, damage by association, damage for loss of distinctiveness etc.
If the above 3 elements are satisfied, then LESA USA Alumnae can succeed in an action for damages or an injunction against LESA USA INC based on the tort of "passin off". If any of the elements is not satisfied, then the action will fail.
In terms of defences, LESA USA INC can plead 1) Use of own name, 2) honest concurrent use, 3)Delay. Use of own name is a limited defence since a trader cannot use his own name if the effect would be to "pass off" his goods or services as those of another. Where 2 traders had concurrently made use of the same name, there may be a factual situation in which neither of them can be said to be guilty of misrepresentation particularly if the concurrent use is long standing. There is no time limit for bringing an action for "passing off" provided the 3 elements are satisfied but after a very long time, the courts might be reluctant to interfere in the issue.
Conclusion
This is just a neutral analysis of the issues without taking sides since I hold leaders of both sides to very high esteem. MsJoe's writing style is one of the best I have seen on camnet and Ms Mary's maturity in handling issues when attacked is commendable. I have analysed the issues but I have not drawn any final conclusion. It is for the reader to determine if there is an actionable tort in "passing off". This is just an academic exercise, I know our dear sisters will resolve the issues in the final reel in-house like sisters always do.
CAVEAT: The facts stated above might not be correct since they were just gleaned from the internet. Anyone invloved in the above issues should not depend on the above write up but should seek proper legal advice if needed.
Regards
Tumasang
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