5 things you need to know about Passing Off:
1. Passing-off is a common law action rather than a statutory cause of action and is used to prevent one party from using the goodwill associated with another party for their own benefit.
2. Passing-off does not provide the owner of the goodwill with a monopoly in the mark or get-up, rather it protects the trader’s business against what can essentially be described as “unfair competition.
3. There are three basic requirements to establish passing-off. These are commonly known as the trinity test:
c. that he/she has suffered damage or the likelihood of damage occurring due to the infringer’s misrepresentation.
a. that goodwill exists in his or her goods or services, in the area where infringement has taken place;
b. misrepresentation by the infringer to the public such that the public are or are likely to believe that the goods or services offered by the infringer are those of the claimant; and
4. Once the trinity test is successfully established, there are a number of legal remedies available to the infringed party. These are interdict, damages or an account of lost profit. It should be noted that the pursuer will not obtain all three remedies against the infringer and that they do not get the privilege of choosing which remedy they would like. This is of course, left to the Court’s discretion.
5. The law of passing off is wide and also covers goodwill associated in slogans, visual images, domain names and other descriptive material.