What Passing Off means?

5th Oct 2017

I have recently successfully acted for clients who were very concerned that their trading name was being used by another company working in the same field of business. Our clients had spent many years establishing an excellent reputation and had also developed significant goodwill, meaning that they were particularly well known for the services they offered.

The company came to me for help, as they had recently been receiving telephone calls from confused customers who wanted to clarify who they should be dealing with. It seems that a company with the same name had been advertising an identical service and my clients were extremely concerned that the situation may cause damage to its reputation.

Passing Off takes place when someone, such as a business, passes off another party’s services as if they are their own, by misrepresentation. The law of passing off protects the goodwill of a business or person from other traders.

It was clear that our client met the required elements of the tort of passing off as the following had occurred:-

  • They possessed a reputation or goodwill in its services; goods; name and the use of its name and logo
  • They had been receiving telephone calls due to the other companies website, their customers had become confused about which company was which, who provided which services and what was the relationship between the companies, were they the same one?
  • This misrepresentation has caused damage to their reputation and goodwill

The clients took the view that the use of their name on a website meant that the other company was passing themselves off as our client. If in the event this was proved then they could ask for the following:

  • Damages or an account of the your profits
  • An order for the delivery up or the destruction of the infringing articles or products
  • An injunction to prevent further actions that amount to passing off
  • Interim injunction
  • Costs

Our team have a wide ranging expertise in dealing with disputes involving intellectual property infringement and the protection of reputation, both personal and business related.

We deal with disputes concerning copyright, design right and trademark infringement and common law passing off, as well as confidential information and non–competition litigation both in the context of employment and commercial conflicts.

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