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Passing off
The goal of a suit for passing off is to prevent the infringer from profiting off of the claimant's goodwill and reputation. There are numerous methods for passing off. Cases of passing off usually center on the 'get-up' (or outward appearance) of the product. In cases when a trademark infringement action has failed, passing off can be used as an alternative remedy because it is more flexible than the registered trademark system. '... nobody has the right to portray his wares as the goods of anyone else,' Lord Halsbury famously said in Reddaway and Frank Reddaway & Co Ltd v Banham and George Banham & Co Ltd [1896] AC 199, the seminal case on passing off. If you misrepresent yourself to a customer or client and they lose money because of it, you could be held liable for fraud. There must be a commercial purpose for the passing off to occur.
An attempt to change the name of a political party (the Social Democratic Party) was unsuccessful in Kean v McGivan [1982] FSR 119. Typically, there needs to be an event or circumstance that can motivate people to part with their cash. Passing off occurs when a defendant uses a sign, logo, or other identifier (such as the way a product is packaged) that consumers have come to connect with the claimant. He markets his own products and services under this or a confusingly similar name, leading consumers to believe they are purchasing the claimant's goods when in fact they are not. The passing-off case Reckitt & Colman Products Ltd Borden Inc and Others [1990] is one of the most well-known examples of its kind. According to 1 WLR 491, the claimants' plastic lemon packaging for their lemon juice set them apart from competitors. The accused also began offering lemonade in a plastic lemon container. Reckitt & Colman was successful in having the defendant abandon the use of containers with this particular shape.
Under the Trade Marks Act of 1994 (TMA 1994), the claimants can legally protect the distinctive shape of their lemon through a registered trade mark. As a result of advancements in marketing, there are now several clever ways to piggyback on the success of established brands. Several defendants used variations of the word "SKY" in their company names, advertising materials, and telephone sales techniques for the purpose of selling extended warranties for the upkeep of satellite TV reception equipment in British Sky Broadcasting Group plc v Sky Home Services Ltd [2006] EWHC 3165 (Ch). Because the claimant is so well-known, it was not difficult to prove that they were passing themselves off as another company. News accounts of unauthorized Apple stores opening in China, where the entire shop is branded and has the look and feel of an Apple Store, demonstrate the extent to which suspected infringers are willing to go even if no actions have yet been initiated in relation to it.
What is protected? positive connotations (as in a logo, moniker, good will or 'get-up')
Why would you want to do that? safeguards against unfair use of, or damage to business reputation
How do you get it? happens spontaneously (with no sign-up required).
When does it wear off? indefinitely
The goal of a suit for passing off is to prevent the infringer from profiting off of the claimant's goodwill and reputation. There are numerous methods for passing off. Cases of passing off usually center on the 'get-up' (or outward appearance) of the product. In cases when a trademark infringement action has failed, passing off can be used as an alternative remedy because it is more flexible than the registered trademark system. '... nobody has the right to portray his wares as the goods of anyone else,' Lord Halsbury famously said in Reddaway and Frank Reddaway & Co Ltd v Banham and George Banham & Co Ltd [1896] AC 199, the seminal case on passing off. If you misrepresent yourself to a customer or client and they lose money because of it, you could be held liable for fraud. There must be a commercial purpose for the passing off to occur.
An attempt to change the name of a political party (the Social Democratic Party) was unsuccessful in Kean v McGivan [1982] FSR 119. Typically, there needs to be an event or circumstance that can motivate people to part with their cash. Passing off occurs when a defendant uses a sign, logo, or other identifier (such as the way a product is packaged) that consumers have come to connect with the claimant. He markets his own products and services under this or a confusingly similar name, leading consumers to believe they are purchasing the claimant's goods when in fact they are not. The passing-off case Reckitt & Colman Products Ltd Borden Inc and Others [1990] is one of the most well-known examples of its kind. According to 1 WLR 491, the claimants' plastic lemon packaging for their lemon juice set them apart from competitors. The accused also began offering lemonade in a plastic lemon container. Reckitt & Colman was successful in having the defendant abandon the use of containers with this particular shape.
Under the Trade Marks Act of 1994 (TMA 1994), the claimants can legally protect the distinctive shape of their lemon through a registered trade mark. As a result of advancements in marketing, there are now several clever ways to piggyback on the success of established brands. Several defendants used variations of the word "SKY" in their company names, advertising materials, and telephone sales techniques for the purpose of selling extended warranties for the upkeep of satellite TV reception equipment in British Sky Broadcasting Group plc v Sky Home Services Ltd [2006] EWHC 3165 (Ch). Because the claimant is so well-known, it was not difficult to prove that they were passing themselves off as another company. News accounts of unauthorized Apple stores opening in China, where the entire shop is branded and has the look and feel of an Apple Store, demonstrate the extent to which suspected infringers are willing to go even if no actions have yet been initiated in relation to it.
What is protected? positive connotations (as in a logo, moniker, good will or 'get-up')
Why would you want to do that? safeguards against unfair use of, or damage to business reputation
How do you get it? happens spontaneously (with no sign-up required).
When does it wear off? indefinitely
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