Passing off is a common law cause of action designed to prevent misrepresentation in the course of trade to the public. Passing off is a cause of action against the unauthorized use of a mark which is likely to induce another person to believe that the goods or services are those of another party’s goods bearing either registered or unregistered trademarks, particularly where an successful action for trademark infringement based on a registered trade mark is unlikely. The cause of action of Passing off is available where there is a prospect of confusion of identity through the unauthorized use of similar marks and it is likely to damage the goodwill and reputation of a business.
Elements of Passing Off:
- Goodwill owned by a trader
- Damage to goodwill
- Misrepresentation
Plaintiffs have the burden of proving goodwill in its goods/services, get-up of goods, brand, mark and/or itself per se.