It is almost an inevitable fact of life that whilst operating your business others may try and take advantage of the brand and goodwill you have created.
You may find a business is using a similar trading name or branding as you, and that you are losing customers. You may also wish to prevent your brand being associated with another, which in turn could damage the reputation of your business.
Concerns may also arise when you spot a business using a website domain name which is identical or similar to your trading name, service or product.
Passing off is complex area of Intellectual Property law which requires a deep understanding of a client’s business, their customers and their geographical market. Furthermore, it is important to have evidence of the adverse effect potential infringers are having on a client’s business.
What is Passing Off?
Generally speaking, in order to successfully claim passing off against another business a claimant will need to show they have:-
- Established goodwill (i.e. a customer following) in the relevant marketplace; and
- That the infringing business has misrepresented their products or services as being related to the claimant’s business, which leads to or is likely to deceive customers; and
- The misrepresentation causes or is likely to cause the claimant damage (i.e. financial loss) as a result.
It is not uncommon for passing off actions to arise alongside Trade Mark infringement disputes. But your business does not have to have a registered Trade Mark in order to bring a successful passing off claim.
How rhw can help you
We have experience in advising a range of clients as to potential passing off actions. We have acted for both clients looking to bring a passing off claim and in defending passing off claims.