Passing Off

For my own future reference; passing off is a common law action, which protects goodwill and reputation built up by the use of a trade mark or business name of a product or service.

The elements of the passing off action must satisfy:

• a misrepresentation; 
• made by a trader in the course of trade; 
• to prospective customers of their ultimate consumers of products and/or service
• which is calculated to injure the business or goodwill of another trade; 
• which causes actual damage to a business or goodwill of the trader by whom the action is brought. 

Some types of passing off include:

• a misrepresentation that one person’s goods are those of another;
• a misrepresentation that one person’s goods are of a particular class or quality;
• a misrepresentation that a connection exists between a person’s goods and those of another where there is no actual connection;
• using images or representations of a character or person to suggest an endorsement or a connection between that person or character with the goods where there is no actual connection and/or endorsement.

Essentially, passing off actions involve situations in which a representation is made in the course of trade, which deceives or causes confusion amongst customers either online or in the real world.