Below our passing offpassing off: a civil wrong, or tort, that protects a trader... solicitors look at the basic requirements of a successful passing offpassing off: a civil wrong, or tort, that protects a trader... claim.
Passing offpassing off: a civil wrong, or tort, that protects a trader... can occur when one person misrepresents that a product or service is their own, when it in fact belongs to someone else. Historically, fraudfraud: in the context of commercial dispute resolution (as o... was required to be proven in order to successfully establish a passing offpassing off: a civil wrong, or tort, that protects a trader... claim, but that is no longer the case.
The “classic” passing offpassing off: a civil wrong, or tort, that protects a trader... claim involves a three-stage test – described by Lord Oliver in Reckitt & Colman Products Ltd v Borden Inc as the “holy trinity” – which we look at below. There is also a more elaborate passing offpassing off: a civil wrong, or tort, that protects a trader... claim, known as “extended passing off”, which we look at in a related article.
Goodwillgoodwill: a business’ intangible and reputational assets s... associated with the product or service
The first thing that a claimant must establish is that he owns goodwillgoodwill: a business’ intangible and reputational assets s... in his product or service.
Goodwillgoodwill: a business’ intangible and reputational assets s... is generally considered to be “…the benefit and advantage of the good name, reputation and connection of a business”. It can reside in the names, logos or colours that distinguish a business and attract customers. It is a form of property, albeit intangible property, so it can be assigned to a third party or disposed of in a will. Courts in the United Kingdom have found, and generally continue to find, that businesses in their jurisdictionjurisdiction: in litigation and dispute resolution, the powe... cannot exist without at least some form of goodwillgoodwill: a business’ intangible and reputational assets s....
Misrepresentationmisrepresentation: in contract disputes, a false statement t... by the defendantdefendant: the respondent against whom court proceedings are... (intentional or not)
The second thing that a claimant must establish is that the defendantdefendant: the respondent against whom court proceedings are... has misrepresented to the public that his products or services are those of the claimant or connected to those of the claimant.
Commonly, misrepresentationmisrepresentation: in contract disputes, a false statement t... involves a defendantdefendant: the respondent against whom court proceedings are... imitating aspects of the claimant’s goodwillgoodwill: a business’ intangible and reputational assets s... – such as a logo or product packaging – thereby representing that the defendant’s products are genuine products made by or authorised by the claimant. The misrepresentationmisrepresentation: in contract disputes, a false statement t... may be implied or occur via a direct statement. For a claim to be successful, the claimant does not have to prove that the defendantdefendant: the respondent against whom court proceedings are... intended to mislead the public or that the defendantdefendant: the respondent against whom court proceedings are... engaged in an act of fraudfraud: in the context of commercial dispute resolution (as o.... However, the claimant does have to prove that, on the balance of probabilities, a proportion of the public would be confused or misled as to which product or service was the claimant’s.
Damage arising from the defendant’s misrepresentationmisrepresentation: in contract disputes, a false statement t...
Thirdly and lastly, the claimant must prove that there has been damage to his goodwillgoodwill: a business’ intangible and reputational assets s... as a result of the defendant’s misrepresentationmisrepresentation: in contract disputes, a false statement t.... That damage may include loss of sales due to the public buying the defendant’s products in the mistaken belief that they are products of the claimant, or damage to reputation for the product not being of the same quality as the claimant’s.
We hope that you found this article helpful. You can contact us and speak to an expertly qualified passing offpassing off: a civil wrong, or tort, that protects a trader... solicitor on a confidential basis if you need assistance.