Introduction to passing off

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

  • Introduction to passing off
  • The elements of passing off
  • Goodwill
  • Misrepresentation
  • Damage
  • Remedies
  • Defences
  • Limitations/difficulties with passing off
  • Benefits of passing off
  • Practical points
  • More...

Introduction to passing off

Unlike many other countries, the UK has no unfair competition law. Brand owners seeking to prevent competitors from marketing ‘copycat’ products or using misleading advertising have to rely on a combination of different intellectual property rights. These rights include the common law right to prevent passing off.

A claim in passing off is based on the premise that no one has the right to represent their goods or services as being those of somebody else. A common scenario is where the defendant has copied the claimant’s packaging, get up or brand in order to misrepresent the source of its goods or services. The key elements necessary to establish passing off are set out below, as well as an overview of defences, remedies and practical points to consider.

Passing off is often claimed in conjunction with trade mark infringement or infringement of design rights. For more information see Practice Notes: Introduction to trade marks and Introduction to designs.

For a more detailed analysis of passing off, see Practice Notes: Elements of passing off—goodwill, Elements of passing off—misrepresentation and Elements of passing off—damage.

What is passing off?

Passing off is a common law action that can be used to protect unregistered trade mark rights in the UK. In practice, claimants often run a passing off case alongside a case for trade mark or design right infringement.

The case

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