Passing off - never being boring

Passing off - never being boring

In this post we give a brief thumbnail of the law of passing off and some practical pointers (inspired by the Pet Shop Boys) on how to prevent it.

[caption id="attachment_6691" align="alignleft" width="240"] © Antonis Lamnatos[/caption]


What is passing off in a nutshell?

The law of passing off prevents someone representing (or 'passing off') their products or services as being those of someone else, usually a more established brand. Typically a claim in passing off arises when someone has copied the claimant's packaging although there are plenty of other scenarios such as implying celebrity endorsement. Passing off is a common law right which means it has arisen under case law rather than legislation.

How do I prove passing off?

The famous Jif Lemon case sets out the three essential elements of a passing off case:

  • the claimant's goods or services have acquired goodwill--goodwill is difficult to define but has been described as 'the benefit and advantage of the good name, reputation and connection of a business. It is the attractive force which brings in custom'
  • there has been a misrepresentation eg an advertisement, use of packaging by another party that has led consumers to think that the goods or services came from the claimant
  • damage has resulted or is likely to result from the misrepresentation.

Can small, local businesses rely on passing off or is it just for big established brands?

The law of passing off does not exclusively serve big brands that have invested millions in their marketing. Many passing off cases involve small, local o

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