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Defences Against Passing Off
A variety of passing-off defenses have emerged from case law, although in an erratic and somewhat overlapping fashion. The following are the main ones: (a) the defendant's name, mark, or get-up used carefully and honestly; (b) the defendant's or claimant's use of the material other than in commerce; (c) the claimant has no goodwill or the goodwill is owned by another party; (d) the claimant's cooperation, encouragement, or consent to use; and (e) there is no demonstrable harm or loss to the claimant.
A variety of passing-off defenses have emerged from case law, although in an erratic and somewhat overlapping fashion. The following are the main ones: (a) the defendant's name, mark, or get-up used carefully and honestly; (b) the defendant's or claimant's use of the material other than in commerce; (c) the claimant has no goodwill or the goodwill is owned by another party; (d) the claimant's cooperation, encouragement, or consent to use; and (e) there is no demonstrable harm or loss to the claimant.
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