Passing off is a tort (common law or statutory) that protects the goodwill of a business by preventing another from misrepresenting their goods or services as those of the claimant. It is available even without a registered trademark, making it a key remedy for unregistered marks and trade dress.
Section 27 of the Trade Marks Act 1999 preserves the common law action of passing off. Indian courts apply the classical trinity: goodwill, misrepresentation, and damage. Passing off can be combined with infringement actions. Unregistered well-known marks receive protection.
Reckitt & Colman Products Ltd v Borden Inc [1990] (the 'Jif Lemon' case) confirmed the classic trinity. UK courts also recognise 'extended' passing off for collective quality (e.g., Advocaat). The Misrepresentation must deceive — mere confusion is insufficient.
Tort of passing off and misleading/deceptive conduct under Australian Consumer Law (ACL) Section 18 overlap in protecting goodwill.
Yes. Passing off protects unregistered rights. You need to establish goodwill (not mere reputation — Starbucks (HK) Ltd v British Sky Broadcasting [2015]) and that the defendant's conduct is likely to mislead consumers.
Trademark infringement requires a registered mark. Passing off does not — it protects common law goodwill. Passing off requires proving goodwill and damage; infringement (under statutory law) has a presumption of validity once registered. Both remedies can be pursued together.
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