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The Tort Of Passing Off

By Dan, Amal & Mani

What is the Tort of Passing Off?

"Passing off is a tort which is committed where a business advertises its goods and services in such a way that they appear to be the good and services of someone else"

What is the Tort of Passing Off?

Elements of Passing off

Three main elements:

  • The Claimant must show he has goodwill or reputation attached to the goods or services.
  • A misrepresentation has been made by the defendant.
  • The claimant has suffered or is likely to suffer damage.

Who can use passing off

who can use the tort of passing off?

Business's and individuals can succeed in a passing off claim.

Goodwil &Reputation

A passing off action protects the reputation or goodwill of a business

Goodwil &Reputation

To succeed in a claim for passing off, the claimant must first prove that they have established a reputation in a mark by using it in a business and that the use is associated with their name personally or their goods/ services.

case example:

case example:

Reckitt and Colman:

>R Sold lemon juice in a plastic squeezy container in the shape of a yellow lemon since 1956. The colour, shape and size has always distinctively been the same.

>1985- C produced and sold a similar shaped lemon.

>R applied for a court order to prevent C from selling this product any further.

Geographical Limits:

Geographical Limits:

How is trade mark linked to Passing Off?

  • Passing is Off is relied upon when an product is unregistered as a trade mark.

How is trade mark linked to passing off?

Limitations/ Remedies

  • However Passing Off claims can be much more time consuming and too complex than compared to claimes for trade mark infridgement.

  • A claim for trade mark infridgement could faill but a passing off claim can succeed and can be more beneficial.

Misrepresentation

The claimant must prove that in the course of trade, the defendant made a representation that was misleading.

Misrepresentation

limitations:

limitations:

  • The real issue is the effect on the customer. Will the customer believe that there is an association between the defendant's goods/services and the reputation of the claimant?

  • The claimant must prove that in the course of trade, the defendant made a representation that was misleading.

Case Examples:

Case Examples:

  • Fenty V Arcadia
  • Fage UK Ltd V Chobani UK Ltd (2014):
  • F, the main importer of yoghurt mad ein Greece, objected to C marketing its yoghurt in the UK as Greek Yoghurt as it was made in the US. F claimed the use of the phrase 'Greek Yoghurt' had sufficent goodwill and reputation to denote a distinctive type of Yoghurt made in Greece, whereas C claimed tht the phrase rleated merely to the style of the product.

Damages

  • To succeed in a passing off claim, the cliamant has to show actual or likely business losses associated with the defendants act.

  • The loss does not need to be financial and the term 'businesses'is widely interpreted to include many things.

Damages

Remedies

The claimant in a passing off action may claim any of the following remedies:

  • An inquiry to establish loss

  • Damages or an account of the defendant's profits

  • An order for the delivery up or destruction of the infringing articles

  • Injunctive relief

Defences:

  • The claimant's mark is not distinctive

  • The claimant's mark is merely descriptive

  • The mark has ceased to be distinctive and has become generic

Defences:

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