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Passing Off

Passing off protects trade reputation under the common law position rather than statute law.

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A claim can be commenced when an individual supplies goods or services and presents them as the owners’ goods and services; for example, by using a similar name. The reason this is a legal offence is because the individual is trading on the owners’ goodwill. This could result in the owner losing business.

Requirements

Both parties must be in a trade or business. This means that it is not an offence should an individual portray his goods to be the owners to a private individual.

Secondly, the owner must have established goodwill in his goods and services. This goodwill must be damaged by the individual.

There is a geographical limitation otherwise the potential claim field could be extravagant. Geographical applies both area and activity wise. An individual may not be committing an offence should he use a similar business name in a different field area.

Defences

If a claim for passing off is raised, the accused individual will usually defend their claim by denying part of the elements within the definition of passing off; such as the owner not having goodwill or that the individual’s actions have not caused any damage.

Remedies

If an owner believes that his goods and services have been passed off by an individual, the usual remedies available to the owner are damages (for loss) and an injunction to prevent the individual from continuing to pass off the owner’s goods and services.

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