‘Passing off’ is a common law tort that protects unregistered intellectual property rights and is aimed at stopping an infringer from making unfair use of a claimants reputation.
Lord Halsbury sums up the purpose of this area of law quite simply with his quote in Reddaway & Co Ltd v Banham and Co Ltd (1896):
“nobody has any right to represent this goods as the goods of somebody else”
The leading authority on the law of passing off is the ‘Jif lemon’ case (Reckitt & Colman Products Ltd v Borden Inc (1990).)
This case established that in order for a claimant to successfully bring a claim for passing off, they must be capable of proving the following:
- They have goodwill or reputation attached to the goods or services. Goodwill has been defined as “the attractive force that generates income”.
- The defendant has made a misrepresentation to the public (whether or not intentional) that has resulted in confusion that shall lead or is likely to lead the public into believing that the goods or services offered by the defendant are the goods or services of the claimant.
- The claimant has suffered or is likely to suffer damage, due to the defendant’s misrepresentation that the source of the defendant’s goods or services is the same as the source of those offered by the claimant.
Each of the elements noted above require an in depth analysis and are not as simple as they seem, suspect someone of making unfair use of your reputation? Get in touch for a no obligation quote!
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