Passing off
Law of 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.

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, passing off protects against all activities of other businesses that may lead the public into believing that they are the trader that actually owns the goodwill.

Passing off is 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.