passing off

Passing off is a tort that protects unregistered trade marks. Essentially, a trader must not sell their own goods under the pretence that they are the goods of another trader. Passing off is a tort of strict liability: the intention of the person passing itself off as another trader is irrelevant.

When a business misleads prospective buyers into believing that his goods are those of another business, and that misrepresentation causes damage to the actual owner of the goodwill or trade reputation, the damaged business will be able to prevent that conduct by injunction and claim damages for "passing off" its business as that of the owner of the goodwill. It does not matter whether the trader intended to mislead the public. So “passing off” protects the relationship of a business with its public. Goodwill may exist in a business name, packaging, branding, in a fictional character’s name, someone’s name (“image rights“) and is accrued by trading activity, advertising and marketing activity.

Usage: The established business sued the business producing cheaper imitations of its products in passing off.

Related Words: strict liability; registered trade mark; trade mark infringement; copyright.