Passing Off

Passing Off

Passing off is a common law tort whereby a claimant is able to assert unregistered rights in a product or service.

In order for a passing off action to be successful there are essentially three elements that are required:

i) Goodwill owned by the claimant in the goods or services in question
ii) A misrepresentation made by another party
iii) Damage or potential damage to the claimant’s goodwill

The misrepresentation can exist in different aspects, for example a product name or product packaging. In the classic ‘Jif Lemon’ case of Reckitt & Colman Products Ltd. v Borden Inc. [1990] 1 WLR 491, the distinctive lemon-shaped packaging of the claimant’s lemon juice was held to have been misrepresented by a similar lemon shaped packaging.

Passing off can be difficult to establish and bringing a passing off action is generally costly. However, there may be easier and cheaper ways to enforce your rights if you suspect that your goods or services are being passed off by a third party.

Please contact us for a consultation.