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Trademark Passing Off

Passing off is a common law tort which can be used to enforce unregistered trademark rights. Passing off essentially occurs where the reputation of party ABC is misappropriated by party XYZ, such that party XYZ misrepresents this reputation and damages the goodwill of party ABC.

The law of passing off prevents one person from misrepresenting his or her goods or services as being the goods and services of the plaintiff, and also prevents one person from holding out his or her goods or services as having some association or connection with the plaintiff when this is not true.

There are usually three requirements needed to establish a passing off claim.

They are:

■ Goodwill – Basically this means reputation. It is the benefit of the good name, reputation and connection of a business. It is the attractive force that brings in custom. It is the one thing that distinguishes an established business from a new business.
■ Misrepresentation – Any misrepresentation must be made by a trader in the course of trade and it must have lead to confusion or the likelihood of confusion in the mind of the customer.
■ Damage – This means establishing actual or likely financial loss. This could include loss of profit in an existing market, loss of reputation or loss of opportunity to expand.

Passing off can be difficult to establish and bringing a passing off action is generally costly. However, there may be easier and cheaper ways to enforce your rights if you suspect that your goods or services are being passed off by a third party.

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