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Volks Electric Railway, Brighton.
The Volks Electric Railway is the oldest operating electric railway in the world. It was originally opened in 1883, at 1/4 mile long, and was extended to Paston Place (now halfway) in 1884.
The railway was further extended to Black Rock to cover for the closure of the Brighton and Rottingdean Seashore Electric Railway in 1901, but was later cut back to it's current terminus at The Aquarium in 1930.
Brighton corporation took control of the line in 1940 and, apart from a closure during World War 2, it has operated ever since. The line was shortened again in the late 1990's, due to the construction of a storm water storage scheme.
Top of a waterfall in North Wales.
Canon EOS 500D EF70-200L
f/8 10sec, ISO 100.
Raw image processed in Camera raw and Photoshop
TCC DPI
As South West Trains no. 458518 whines into Putney working service 2U19, the 0858 from London Waterloo to Windsor & Eton Riverside, led by classmate 8523, a further classmate, 8521, pulls out of the station with 2V13, the 0807 anti-clockwise "Hounslow Loop" service from London Waterloo to Hounslow and back.
By: Maha Ali Khan, Amanda Pokhoy, Devin Bartlett and Carol Marie Valerio Pena
Background
While thinking about the tort scavenger hunt and different types of torts we encounter on a daily basis, we realized we carried an example of the “passing off” tort with us all the time! The photos show a comparison between the headphones owned by three different members of our group: Carol's Samsung headphones, Devin's Apple headphones and Maha's imitation Apple headphones. Upon reviewing the comparison between Maha's headphones versus Devin's we see a clear example of the tort of passing off.
Tort of Passing Off
The tort of passing off occurs when one tries to "pass off" their own product or service as that provided or produced by another to take advantage of the other's reputation. This can be achieved by using a similar name to a well-known brand trusted by consumers for a similar product, or by creating and marketing a product that is similar to a well-known product by matching its packaging or look thereby copying the presentation of the recognizable product.
According to the precedent set by the Ciba-Geigy Canada Ltd v Apotex Inc , [1992] 3 SCR 120, [1992] SCJ No 83 case, to prove passing off has occurred the onus is upon the plaintiff to demonstrate that:
a) Their product has an element of good will attached to it - the product carries a reputation that is valuable and well-recognized within the related market which stems from the look or name of the product and would incline consumers to buy it
b) An element of misrepresentation - whereby the producer of the fake "passing off" product seeks to confuse consumers or have them believe the product is “the real deal”, so to speak, or that it is affiliated with the plaintiff's product to capitalize on the aforementioned reputation, and
c) Damage to the plaintiff - damages that may come or have already come to the plaintiff as a result of the existence of the replica such as lost sales. The purpose of this tort is to protect the proprietary rights of business and plaintiffs to help them preserve the goodwill and reputation of their business and shelter consumers from being misled.
Application
In this case, a quick glance of Maha's headphones in comparison to Devin's will yield very few differences since the size, shape of the earbud, structure and markings on the mic piece, and the phone jack are just about exactly the same. It is only upon close inspection that one would observe that the genuine Apple pair has an extra plastic clip to join the split headphone wires together, which is missing from the imitation pair. In addition, the replica earbuds don't have the same vents on the side of the stem as the authentic pair. One can compare these two headphones to Carol's Samsung headphones of a very similar nature but see a clear variation in the design elements, even in the phone jack which is of slightly different width, is gold rather than silver and has a very different casing whereas the Apple and replica headphones are virtually indistinguishable in design.
Additionally, we have included the packaging in which the headphones were purchased on the right. The design and size of this packaging is extremely similar between the authentic iPhone headphones and the replica with very few observable differences at first glance. The only major difference is the embedded Apple logo on the back of the genuine case which is not present on the replica. However, we can see a difference in quality as Devin's headphones fit neatly in the package versus Maha's, which can't fit properly with the mic piece popping out of its socket.
The middle bottom picture shows the display at the convenience store in Waterloo where the replica headphones were purchased and it is important to note that they offer a variety of colors in the headphones, including white. The major distinguishing feature between the Apple and replica headphones is the color of the replica. In white, the replica would be a nearly identical duplicate of the Apple headphones they are evidently modelled after and would easily pass off as Apple headphones unless closely observed. One should also note that Apple does not produce their headphones in colours other than white but upon glancing at these products the replicas can be misrepresented as Apple’s product to those who do not know Apple original headphones only come in white, or consumers who may think Apple released new colours as they often do in their other products (i.e. iPhones, iPods).
Criteria for a Tort of Passing Off Case
In this situation, all the criteria for making a tort of passing off case are present:
1) Good will/reputation: Apple has world-wide recognition with a high brand value due to a reputation for innovation and quality with a well-established consumer base and market in which these headphones exist as well. Their headphones specifically attract buyers through both their sleek look and brand name, as well as the quality associated with their features.
2) Misrepresentation: The product is clearly modelled off the Apple headphones based on the near perfect duplication of their signature elements. By developing a highly similar looking product, the replica creators and their vendors are profiting off of those that may be confused by the similar look of the product or those who may be seeking a cheaper alternative for the same look. Regardless of the presence of an intention to confuse consumers, this replica product could easily confuse less knowledgeable consumers into believing the headphones are affiliated with Apple. A consumer can easily perceive the replica product to be a cheaper model in Apple’s headphones product line, thus, resulting in the purchase of the replica product.
3) Harm to the plaintiff: If Apple were to launch a Canadian lawsuit for the tort of passing off, they would demonstrate that they had lost sales as a result of the dupe. In Maha's case, who is an iPhone user herself whose own authentic Apple headphones broke, had she not found the replica with the same headphone shape and similar features (ie. iPhone compatible mic piece), she would have likely purchased another pair of Apple's authentic headphones. This constitutes one of many lost customers and lost sales suffered by Apple due to the replica product. It is important to note that there doesn't have to be an actual documented case of a consumer being misled as is present in this case, but the potential that a consumer might be misled.
Remedies and Other Actions
Assuming litigation through the Canadian legal system, Apple could seek remedy through pecuniary damages and seek an amount equivalent to a reasonable estimate of lost sales or even pecuniary damages for any estimated depreciation in their brand's value if the replica became pervasive enough to reflect negatively on Apple's brand. Other remedies include the plaintiff filing an injunction to forbid the replica-makers from continuing the production of said replica to prevent future harm or taking further legal actions under other areas of the law highlighted below.
1) Trade-marks Act: Acts as another form of protection from passing off along with the tort of passing off as the tort of passing off is a common law principle, while sections 7. (b) and (c) of the Trade-marks Act provide a statutory action. Remedies here are the same as for a tort of passing off action but also include criminal sanctions, destruction of replicas produced, destruction of means of production of replicas. This differs from the common law principle of passing off as it hinges on the existence of a trade-mark as defined in section 2 of the Trade-marks Act.
2) Patent Act: Assuming Apple has patented the structure/mechanisms of any part of the headphone that has been copied by the replica makers, Apple could sue for patent infringement. This could result in remediation in the form of pecuniary damages for lost sales or that Apple be forwarded the profits from the patent-infringing product. Additionally, Apple, as a patentee, would have the right to an injunction during the litigation process to prevent any potential infringement for the duration of the suit.
Possible Arguments Made by the Defendant
The company that made the replica could argue that they did not commit the tort of passing off. Since goodwill/reputation and harm to the plaintiff are hard to refute, the defendant would likely argue that there was no misrepresentation. In order to argue this, the defendant would try to find other well known headphone brands that have similar headphone designs. While Carol’s Samsung headphones were clearly different, if the defendant can find other well known brands that are more alike, they could possibly win the case (due to the balance of probabilities). Additionally, the replica-producer would highlight key features of their packaging and design elements to argue the product is clearly distinguishable from the Apple design.
. . . the cloud passed . . . the sun came out . . . in this moment of sunlight I looked up from my iMac screen . . . a sign appeared on the wall . . . flickering . . . transitory . . . light . . . a moment of light to be remembered . . . RIP Steve Jobs.
The engineer of the empty coal train train that has been waiting in the passing loop, has flicked-on the headlight/ditch lights in anticipation of being able to continue his progress down the grade towards Helena and beyond after the coal train has passed.
CFE 3415 heads back north from Durand passing though Montrose with a long line of empty grain cars and tank cars for Dow chemical.
It was time...
A last walk in her favorite park with her sister Balee and Crunchy and her Mom at her side. But the weakness and the burdens of the ever growing tumors made breathing now even a labor.
It is the duty of every pet owner to know when their beloved companions, who have looked to us their entire life for care and nurturing, to also know when life is not longer fun. And Kaya let her know exactly that... So before the suffering came, Crunchy made the painful choice that it was time to let her go.
So back at the SMASHPAD, surrounded by friends and family, we said our good-byes. The vet, Anne came to the house to administer the final shots and Crunchy was able to feel her final breath.
Farewell, Kaya....you are dearly missed...
Manchester, UK 17th Oct 2013. Taken on Olympus XA2 with Ilford XP2 400ASA. Commercially developed (C41) and scanned by ASDA
HAPPY HALLOWEEN!!
Hope you all have a fantastic Halloween this year. This shot was taken inside the 125 year old Vineland Hotel that was boarded up for over 20 years, I always have had a hard time walking past open doors down long dark hallways. When doing a photoshoot in this location I had to go in from an upstairs door to get in to unlock it so I could let everyone else in. This was the long dark hallway I had to walk down, that was only the beginning seeing as I still had the stairs and then back through the downstairs to let them in. I'm not a believer in ghost but I do believe in homeless junkie squatters..
Soundtrack: www.youtube.com/watch?v=3YQj8tlQGMA
Links:
TatteredPhotography.WordPress.com
Passing through Heaton Chapel station on the 11.33am Hazel Grove to Preston train, June 4th 2010.
Taken with an Agfa ISO Rapid 1c on expired Kodak Ektar 100 film, home developed in Tetenal C41 chemistry.
73156 and the 76 ton crane head south at Swithland on the Great Central Railway during a Timeline Events photo charter.
With a voice of billowing coal smoke roaring "I think I can!" at the sky, the Little Engine That Could labors upward on its steep mountain railway.
While we were on a siding on the return trip from the mountain summit, this train passed us headed up.
(c) Hank Fox 2006
I put these decals onto Laura yeas ago.
The idea came from the movie "Over the top" where Sylvester Stallone has the same text on his trucks mudguards.