Passing off seeks to protect the good will of businesses. It enables owners of unregistered trade marks to rely on an action of passing off for any alleged infringement. It is most commonly used by individuals who have failed to successfully register their trade marks.
This area of law is wider than trade mark law in terms of the scope of marks, signs, materials and other aspects of a trade mark that can be protected. For example, it can seek to protect a business marketing strategy or even their advertising themes.
To prove passing off has occurred the trade mark owner has to be able to show that goodwill has been established and another trader has taken advantage of this to their detriment. Goodwill can be defined as the benefit and advantage of a good name, reputation and connection of a business.
The following is needed to establish passing off:
- A misrepresentation;
- made by a trader in the course of trade;
- to a prospective customers his or ultimate consumers of goods or services supplied by him;
- which is calculated to injure the business or goodwill of another trade;
- which causes actual damage to a business or goodwill of the trade or in time will probably do so.
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