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Passing off occurs when someone wrongly claims that the goods, services or business activities of another person or company are their own, by misrepresentation. The law of passing off is designed to protect business owners because this can harm the reputation of and cause financial losses to legitimate businesses, who fall victim to misrepresentation by others. It can apply to individuals as well as companies, for example, if someone falsely claims to have a celebrity endorsement. If you or your business have been affected or suffered damage as a result of passing off, you may be able to bring a civil action, and the intellectual property law specialists at David Ebert can help you.

In order to show that passing off has taken place, all of the following must apply:

  • The claimant must have a reputation or goodwill held in their company name, brand, logo or trademark. This is a subjective test since it must be shown that the brand is distinguishable from competitors and that the element of goodwill is associated with that particular brand, product or service
  • A misrepresentation must have occurred in which someone else has misleadingly claimed that the goods and services are their own
  • This misrepresentation has damaged the claimant’s reputation or goodwill

For high-profile individuals to show that passing off has occurred, it will be necessary to show the following:

  • They had an established reputation when the incident occurred, and;
  • The misrepresentation was sufficient to persuade the public that the claimant had given their support or endorsement to the relevant goods or services

If an action for passing off is brought, the law recognises a number of defences, depending on the circumstances, including:

  • That the slogan or corporate identity are not distinguishable
  • That the company logo or branding are actually generic in nature
  • That the claimant consented to the activity in question

If the court finds in favour of the claimant and decides that passing off did indeed take place, there are a number of remedies available:

  • Financial compensation, known as damages, which may take into account any profits made by the defendant as a result of the misrepresentation
  • An order for the delivery of any infringing items
  • An injunction to prevent the passing off from continuing
  • An interim injunction if the matter is urgent

The law of passing off has developed through the common law rather than being laid down by statute, therefore each case is decided very much upon its facts. It is advisable to register your brand as a trademark if it is possible to do so because you will be in a stronger position if an infringement arises. This is because you could rely on the law relating to trademarks rather than solely the common law principles of passing off, which can be subjective in nature.

The intellectual property lawyers at David Ebert are experts in intellectual property law and we will be able to provide clear, practical advice based on your individual circumstances. For more information on passing off and how we can help you, please contact us and we will be happy to help.

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