Passing off
Law of Passing Off

Passing of 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 that is of strict liability: the intention of the person passing itself off as another trader is irrelevant.

Passing off is a catch area all area of law that entitles a business to prevent other businesses from unfairly using its goodwill. Goodwill is the attractive force that brings in customers and is the essence of what passing off protects. Otherwise known as the law of unregistered trade marks, it protects against all activities of a business that may lead the public into believing that they are the actual trader. It is therefore a flexible and adaptable area of law, and often claimed in conjunction with trade mark infringement, where 1. a registered trade mark exists and 2. there is doubt about the claim for infringement.

When a business misleads the prospective buyers into believing that his goods are those of another business, and that causes damage to the other business or its goodwill, the damaged business will be able to prevent that conduct. It does not matter whether the trader intended to mislead the public. So “passing off” protects the relationship of a business to its public. Goodwill may exist in a business name, packaging, branding, in a fictional character’s name, someone’s name (“image rights“).