Elements of passing off—goodwill
Elements of passing off—goodwill

The following IP guidance note provides comprehensive and up to date legal information covering:

  • Elements of passing off—goodwill
  • The elements of passing off
  • Potential claimants
  • Goodwill

Passing off is a common law tort which protects rights that are not capable of registration or are difficult to register as trade marks (eg colours, get-up and packaging), or rights that had not been registered formally, but have acquired goodwill. The law of passing off entitles a trader to prevent other traders from unfairly using its goodwill. It is unlawful for a trader to hold out that its goods or services have some association or connection with another trader when this is not the case. Passing off is a tort of strict liability: the intention of the trader liable for passing off is not relevant.

This Practice Note considers in detail, the second element of a claim for passing off—goodwill. For a general introduction to this area, see Practice Note: Introduction to passing off.

For more information about the use of registered trade marks to protect colours, shapes, and other unconventional signs, see Practice Note: Unconventional trade marks.

The elements of passing off

The 'classical trinity'

There are three elements required to prove passing off (commonly known as the 'classical trinity', a phrase coined in the Parma ham case), and restated by the House of Lords (HL) in the well-known Jif Lemon case:

  1. a goodwill or reputation attached to the relevant goods or services

  2. a misrepresentation by the defendant to the