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.

(C. & A. Modes and C. & A. (Ireland)

-v-

& 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

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.)