Passing Off

We would always advise businesses to protect their brand by applying to register it as a trade mark if possible. However, there may be occasions when a brand name does not meet registration criteria or there may be commercial reasons why a business chooses not to apply to trade mark their brand. If you have an unregistered trade mark and somebody else uses your brand name without permission, then it may be possible to rely on the law of passing off.

The law of passing off prevents a business from misrepresenting that its goods or services are indeed those of another. It also prevents a business from holding out that its goods or services are associated with or connected to another business. In essence, the law of passing off protects the goodwill and reputation of your business.

The law of passing off has been extended and developed significantly by the courts in recent years and therefore it is vital to seek advice from an early stage. We can assist with advising and taking action under the tort of passing off and defending any claims you may face from a third party claimant.

Our intellectual property solicitors have dealt with a number of claims in relation to passing off and will be able to assist in either pursuing or defending claims of this nature. If you would like us to help you make or defend a claim please call or email us today.

FAQs

One of the reseller’s of my goods is claiming that he is the creator/manufacturer of the goods. What can I do?

Nobody should pass off someone else’s goods as his own. It sounds like passing off could assist here provided the essential elements of goodwill, misrepresentation, confusion on the part of the public and damages or likelihood of damages are met. We of course can assist and advise you accordingly.

Does passing off only apply to unregistered trade marks?

Not necessarily. It is an action brought by unregistered trade mark owners but also registered trade mark owners if the action does not fall into the scope of trade mark infringement and/or in addition to registered trade mark infringement. Passing off should therefore be considered as part of the client’s overall strategy in infringement cases.

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Abigail Sinden

Associate Solicitor

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