Shopping on line can be easy, simple and save you lots of money. It can also take a lot of your time, frustrate you, and result in unwanted purchases. Now the same can be said for regular high street shopping, but with the vast opportunity presented by the Internet it will pay you to spend a few minutes reading this and understanding how to better optimize your Passing Off shopping experience:
1. Compare - without doubt the biggest advantage that the Passing Off offers shoppers today is the ability to compare thousands of Passing Off at a time. This is a great thing, but not necessarily all the time! Too much can be daunting at times so take advantage of the great comparison sites and where possible let them do the hard work for you.
2. Research - if it has been said it will be on the internet. Ignorance is no longer a justifiable reason for buying the wrong thing. Take the time to research in detail everything that you could possible want to know about
3. Testimonials - don't know anybody that has bought a Passing Off? Wrong! If the Passing Off is good the internet will let you know. Use the Internet as a friend and get testimonials before you buy.
4. Questions - Got a question about Passing Off then search the Forums, FAQ's, Blogs etc. Don't be afraid to ask .....
5. Reputation - Never heard of the company selling Passing Off? Don't worry, no reason why you should know every company in the world, but you know someone that does! Use the internet to find out what people are saying about Passing Off and build up a picture of their reputation for sales, returns, customer service, delivery etc.
6. Returns - still worried that even after all of the above your Passing Off wont be what you want? Check out the returns policy. There is so much competition now that someone, somewhere is bound to offer the terms that you are comfortable with.
7. Feedback - happy with your Passing Off then let people know, after all you are depending on others people input in your buying decision, so why not give a little back.
8. Security - check for the yellow padlock on the Passing Off site before you buy, and the s after http:/ /i.e. https:// = a secure site
9. Contact - got a question about Passing Off, or want to leave a comment then check out the sites contact page. Reputable companies have them and respond.
10. Payment - ready to pay for your Passing Off, then use your credit card or PayPal! Be aware of companies that don't accept them, there may be genuine reasons but given the huge amount of choice you have when buying online there is no reason at all not to buy via credit card or PayPal.
For other uses of this and related terms please refer to the "pass" disambiguation page.
Passing off is a
common law tort which can be used to enforce unregistered trademark rights. Passing off essentially occurs where the reputation of party A is misappropriated by party B, such that party B misrepresentation this reputation and
damages the
goodwill of party A.
The law of passing off prevents one person from misrepresenting his or her goods or services as being the goods and services of the plaintiff, and also prevents one person from holding out his or her goods or services as having some association or connection with the plaintiff when this is not true.
Passing off and trademark law
A cause of action for passing off is a form of intellectual property enforcement against the unauthorised use of a mark which is considered to be similar to another party's registered or unregistered trademarks, particularly where an action for
trademark infringement based on a registered trade mark is unlikely to be successful (due to the differences between the registered trademark and the unregistered mark). Passing off has developed from the common law, whereas
statutory law such as the United Kingdom
Trade Marks Act 1994 provides for enforcement of registered trademarks through infringement proceedings.
Passing off and the law of registered trademarks deal with overlapping factual situations, but deal with them in different ways. Passing off does not confer monopoly rights to any names, marks, get-up or other indicia. It does not recognize them as property in its own right.
Instead, the law of passing off is designed to prevent misrepresentation in the course of trade to the public that there is some sort of association between the business of Defendant and that of the Claimant. Where the defendant does something so that the public is misled into thinking the activity is associated with the Claimant, and as a result the Claimant suffers some damage, under the law of passing off it may be possible for the Claimant to initiate action against the defendant.
Elements of passing off
The three fundamental elements to passing off are therefore reputation, misrepresentation, and damage to goodwill, which are sometimes known as the
classical trinity, as restated by the English House of Lords in the case of Reckitt & Colman Ltd v Borden Inc 1 RPC
Reports of Patent, Design and Trade Mark Cases, published by Sweet & Maxwell, also known as the
Royal Patent Cases; also 17 IPR 1 (
Intellectual Property Reports). 341 1 (the
Jif Lemon case). Lord Oliver stated the matters which a successful
plaintiff must establish, as follows.
First, he must establish a goodwill or reputation attached to the goods or services...Secondly, he must demonstrate a misrepresentation by the defendant to the public (whether intentional) leading or likely to lead the public to believe that the goods or services offered by him are goods or services of the plaintiff...Thirdly, he must demonstrate that he suffers or damage as a consequence of the erroneous belief that the goods or services of the defendant are the goods or services of the plaintiff.
See also ConAgra Inc. v McCain Foods (Aust) Pty Ltd (1992) 23 IPR 193.
Goodwill or reputation
Misrepresentation
Types of misrepresentation include:
- using the mark of the plaintiff's product
- using the get-up of the plaintiff's product
- using the plaintiff's advertising theme
- using the design or shape of the plaintiff's product.
Damages
For misrepresentation to be actionable, it must be one calculated to cause damage to plaintiff's goodwill. The plaintiff need not prove actual or special damage, a real and tangible probability of damage is sufficient for a claim of damages. Whether damage is done can be considered an acid test for which misrepresentations are actionable, and those that are beneath notice of the law.
Extended passing off
One of the instances where passing off is actionable is the
extended form of passing off, where a defendant's misrepresentation as to the particular quality of a product or services causes harm to the plaintiff's goodwill. An example of this is
Erven Warnink v J Townsend & Sons (Hull) Ltd AC 731, in which the makers of
advocaat sued a manufacturer of a drink similar but not identical to advocaat, but which was successfully marketed as being advocaat.
The extended form of passing off is used by celebrities as a means of enforcing their
personality rights in common law jurisdictions. Common law jurisdictions (with the exception of Jamaica) do not recognise personality rights as rights of
property. Accordingly, celebrities whose images or names have been used can successfully sue if there is a representation that a product or service is being endorsed or sponsored by the celebrity or that the use of the likeness of the celebrity was authorised when this is not true.
== Reverse passing off ==Another variety, somewhat rarer is so-called 'reverse passing off'. This occurs where the defendant markets the plaintiff's product as being the defendant's product (see John Roberts Powers School v Tessensohn FSR 947. It will be recalled that orthodox passing off entails the defendant representing that his product is the plaintiff's product. In many cases, reverse passing off can be explained under the ordinary rules: for example where a defendant may represent that he or she made goods which were in fact made by the plaintiff so as to pass off his own business as a branch of the plaintiff's.
See also
Notes
For other uses of this and related terms please refer to the "pass" disambiguation page.
Passing off is a common law tort which can be used to enforce unregistered trademark rights. Passing off essentially occurs where the reputation of party A is misappropriated by party B, such that party B
misrepresentation this reputation and
damages the goodwill of party A.
The law of passing off prevents one person from misrepresenting his or her goods or services as being the goods and services of the plaintiff, and also prevents one person from holding out his or her goods or services as having some association or connection with the plaintiff when this is not true.
Passing off and trademark law
A
cause of action for passing off is a form of
intellectual property enforcement against the unauthorised use of a mark which is considered to be similar to another party's registered or unregistered trademarks, particularly where an action for trademark infringement based on a registered trade mark is unlikely to be successful (due to the differences between the registered trademark and the unregistered mark). Passing off has developed from the common law, whereas statutory law such as the
United Kingdom Trade Marks Act 1994 provides for enforcement of registered trademarks through infringement proceedings.
Passing off and the law of registered trademarks deal with overlapping factual situations, but deal with them in different ways. Passing off does not confer monopoly rights to any names, marks, get-up or other indicia. It does not recognize them as property in its own right.
Instead, the law of passing off is designed to prevent misrepresentation in the course of trade to the public that there is some sort of association between the business of Defendant and that of the Claimant. Where the defendant does something so that the public is misled into thinking the activity is associated with the Claimant, and as a result the Claimant suffers some damage, under the law of passing off it may be possible for the Claimant to initiate action against the defendant.
Elements of passing off
The three fundamental elements to passing off are therefore reputation, misrepresentation, and damage to goodwill, which are sometimes known as the
classical trinity, as restated by the English House of Lords in the case of
Reckitt & Colman Ltd v Borden Inc 1 RPC
Reports of Patent, Design and Trade Mark Cases, published by Sweet & Maxwell, also known as the
Royal Patent Cases; also 17 IPR 1 (
Intellectual Property Reports). 341 1 (the
Jif Lemon case). Lord Oliver stated the matters which a successful plaintiff must establish, as follows.
First, he must establish a goodwill or reputation attached to the goods or services...Secondly, he must demonstrate a misrepresentation by the defendant to the public (whether intentional) leading or likely to lead the public to believe that the goods or services offered by him are goods or services of the plaintiff...Thirdly, he must demonstrate that he suffers or damage as a consequence of the erroneous belief that the goods or services of the defendant are the goods or services of the plaintiff.
See also ConAgra Inc. v McCain Foods (Aust) Pty Ltd (1992) 23 IPR 193.
Goodwill or reputation
Misrepresentation
Types of misrepresentation include:
- using the mark of the plaintiff's product
- using the get-up of the plaintiff's product
- using the plaintiff's advertising theme
- using the design or shape of the plaintiff's product.
Damages
For misrepresentation to be actionable, it must be one calculated to cause damage to plaintiff's goodwill. The plaintiff need not prove actual or special damage, a real and tangible probability of damage is sufficient for a claim of damages. Whether damage is done can be considered an acid test for which misrepresentations are actionable, and those that are beneath notice of the law.
Extended passing off
One of the instances where passing off is actionable is the
extended form of passing off, where a defendant's misrepresentation as to the particular quality of a product or services causes harm to the plaintiff's goodwill. An example of this is
Erven Warnink v J Townsend & Sons (Hull) Ltd AC 731, in which the makers of
advocaat sued a manufacturer of a drink similar but not identical to advocaat, but which was successfully marketed as being advocaat.
The extended form of passing off is used by celebrities as a means of enforcing their
personality rights in common law jurisdictions. Common law jurisdictions (with the exception of Jamaica) do not recognise personality rights as rights of
property. Accordingly, celebrities whose images or names have been used can successfully sue if there is a representation that a product or service is being endorsed or sponsored by the celebrity or that the use of the likeness of the celebrity was authorised when this is not true.
== Reverse passing off ==Another variety, somewhat rarer is so-called 'reverse passing off'. This occurs where the defendant markets the plaintiff's product as being the defendant's product (see John Roberts Powers School v Tessensohn FSR 947. It will be recalled that orthodox passing off entails the defendant representing that his product is the plaintiff's product. In many cases, reverse passing off can be explained under the ordinary rules: for example where a defendant may represent that he or she made goods which were in fact made by the plaintiff so as to pass off his own business as a branch of the plaintiff's.
See also
- Dastar Corp. v. Twentieth Century Fox Film Corp. — lawsuit over "reverse passing off"
Notes
Passing off
Passing off. Last Updated 5 March 2004. Taking business by presenting goods or services as someone else's is actionable at common law.
Passing off - Wikipedia, the free encyclopedia
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Passing off: legal phrases UK defined. London lawyers & solicitors firm in UK, England. Passing off is a tort that protects unregistered trade marks goodwill & reputation.
BKF - Passing Off
Case Studies: Passing Off: Our team successfully represented Scotsman Publications Limited in a case raised against them by Caledonian ...
