If a business sells goods or provides services which the public is led to believe are the goods or services of another business, then this may be an offence known as ‘passing off’. The law on passing off is therefore used to prevent unfair competition.
Generally, the following three elements (known as the “classical trinity”) of an offence of passing off must be present in order to succeed in a claim:
- The claimant must have sufficient goodwill or reputation in its goods or services;
- The offending party must have mispresented its goods or services to the public as being the goods or services of the other party, to the extent that the public would have been likely to have held such a belief; and
- The claimant must have suffered damage as a result of the offending party’s misrepresentations.
In the event that a party has infringed the rights of a business with an unregistered trade mark, it may be possible to bring a claim for passing off, depending upon whether the above elements can be proven.
How we can help?
Our intellectual property lawyers 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.
In addition to the above, our lawyers are also able to assist and advise on a number of other intellectual property-related issues.