The Gazette 1984

GAZETTE

JANUARY/ FEBRUARY 1984

O'Neill had been passing off shorts, jerseys and track suits as the products of Adidas by the imitation of the general appearance or "get up" of Adidas products characterised by three stripes so as to confuse and mislead the public. Noted sports personalities gave evidence as to the degree to which they associated the three stripe motif with Adidas products. (Mr. J. Magee: "I associated Adidas with three stripes, but I do not necessarily associate three stripes with Adidas"). HELD: That the public mind to be considered is the public mind in this country and confusion which is resultant is the confusion of probable customers here. If the claim were to succeed, Adidas would have to establish the exclusive association of the three stripe design with the goods of Adidas in Ireland. On the facts, O'Neill had commenced experi- menting with stripes on its textile products in the late sixties (and in that respect was not alone in doing so as other firms had commenced using stripes on their products). O'Neill products had always been delivered in clearly marked boxes or packages and each garment bore the O'Neill name and sign. It is to be assumed in relation to the possibility of confusion that customers will look fairly at the goods on display and that such goods will be shown fairly without the distinguish- ing features being concealed. Up to 1976 few Adidas products were imported here, notwithstanding their international reputation and an awareness in Ireland of this, and by the time Adidas commenced manufacturing in Ireland in 1976, O'Neill products with a three stripe design were well established and well known. Had Adidas succeeded in registering a three stripe design in Ireland, different considerations might apply and had the complaint been that the name "Adidas" had been used in association with O'Neill goods although no Adidas products were on sale in Ireland, a goodwill and a potential in relation to customers would have been established and protection given. Adidas had not established in this country an exclusive association of the three stripe design with their garments. The trial Judge's finding that the use of stripes on sports gear was a fashion in the trade and that O'Neill had done no more than adopt this fashion and had not attempted to deceive or pass off would not be disturbed.

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACT, 1973 A strike took place in the company's premises in February, 1980 and lasted until July, 1980. The terms of the settlement included an arrangement whereby employees who wished to be made redundant by the company would be "laid-off" and after four weeks they could avail of the provisions of Section 12 of the Redundancy Payments Act, 1967 and apply to be made redundant. The statutory 'lay-ofF procedures are contained in Sections 11 to 13 of the 1967 Act. Section 11 provides that where an employee's employment ceases because his employer can no longer provide him with work, that employee may be "laid- off" if the employer has a reasonable belief that the cessation in employment will not be permanent and notice to that effect is given to the employee prior to the cessation. Section 12 of the Act allows an employee who has been laid-off for more than 4 weeks to serve either notice of intention to claim redundancy payment, or a notice terminating the contract of employment. If the latter notice is served it is deemed to be the former. If a Section 12 notice is served, the employer may respond with a counter-notice under Section 13. This counter-notice may be served if the employer has a reasonable expectation that within 4 week of the Section 12 notice being served he can provide the employee with employment for not less than 13 weeks. In this case the employees who were "laid-off" served notice of intention to claim redundancy payments and they received those payments. They did not give notice of termination. The question before the Court was whether they were entitled to receive payment in lieu of notice under the 1973 Act. They could only receive this if their employment was terminated by their employer. The Court held that an employer is only allowed to avail of the statutory lay- off procedures where it is reasonable in the circumstances for him to believe that the cessation in employment will not be permanent. In this case it had been determined by the Employment Appeals Tribunal that the employer could not reasonably have held that belief and so he could not avail of Section 11 procedures. The Court in considering the claim on appeal stated that: (1) If the contract of employment does not allow for the suspension of the operation of the contract then by ceasing to employ an employee and refusing to pay him wages the employer has been guilty of a serious breach of contract amounting to a repudiation of it. (2) At common law that repudiation would not automatically bring the contract of employment to an end: the employee is free to accept that

the repudiation has terminated the contract or not to do so. (3) If the employee accepts the repudia- tion there has been a constructive dismissal of the employee at common law and the contract has been terminated by the employer. (4) If the employee responds to the lay- off notice and adopts the lay-off procedures and it is shown that the conditions for their intention did not exist, then the employee is entitled to treat the repudiation of contract as having terminated it. (5) The company in this case terminated the contract of employment without proper notice and so was in breach of their obligations under the 1973 Act. (6) The agreement between the company and the union to adopt the procedures proposed, an acceptance of a four week lay-off situation, followed by a claim for redundancy payment, did not amount to a waiver of rights under the 1973 Act, since the alleged waiver was neither clear nor unambiguous. (7) That the fact that the employees served a notice of intention to claim r e dund a n cy in which they specifically stated that they had been laid-off did not estop them from averring that their employer terminated their contracts and dismissed them. Just as they were not waiving any of their legal rights so also they were making no representation to their employer that they would not enforce them. The Court therefore held that the employees were entitled to payment in lieu of notice. Industrial Yarns Ltd. -v- Leo Creene and others - High Court (per Costello J.), 2nd February, 1983 - unreported. Gary Byrne

Copies of judgments in the above cases are available on request from the Society's Library. The photocopying rate is lOp per page. (Students — 5p per page.)

(C. & A. Modes and C. & A. (Ireland) -v- C. & A. Waterfordand Others ([1976] IR 198 distinguished). Adidas Sportschufabriken Adi Dossier K.G. -v- Charles O'Neill and Company Limited - Supreme Court (per O'Higgins G.J. and Hederman J. Henchy J. dissenting). [1983] ILRM 112. Daire Hogan

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