Nath Solicitors reviews the issues concerned in passing off, what it means, how to establish a claim, the available remedies, and potential defences.
Passing off is about the idea that you can’t falsely claim others’ goods or services as your own. A passing off claim arises when one party, either intentionally or unintentionally, promotes its goods or services in a way that tricks consumers into thinking they’re linked to another company.
Elements of Passing Off
To succeed in a claim for passing off, a claimant must establish three essential elements:
- Goodwill: The claimant must show that their goods or services have built up goodwill, or a reputation in the market, and are recognised by the public through a distinctive name, mark, packaging, or other feature.
- Misrepresentation: There must be a misrepresentation by the defendant, whether intentional or not, that leads, or is likely to lead, consumers to believe that the defendant’s goods or services are associated with those of the claimant.
- Damage: The claimant must prove that they have suffered or are likely to suffer damage as a result of the misrepresentation.
Remedies for Passing Off
If a claimant successfully proves a case of passing off, they may be entitled to several remedies, which are typically available in intellectual property disputes:
- Damages
- Account of profits
- Delivery up or destruction
- Injunction
Defences to Passing Off
If passing off proceedings are brought against a defendant, several defences may be raised, including:
- Failure to prove the key elements
- Use of the defendant’s own name
- Honest concurrent use
- Delay or acquiescence
Need Advice? Contact Nath Solicitors
If you believe your business has been affected by passing off, or if you are facing allegations of passing off, it is important to act quickly and get expert legal advice as soon as possible. If you need advice or assistance, please contact us on 0203 983 8278 or get in touch with the firm online and we will help you understand your options.