Is passing off a tort?
Asked by: Jany Koss DVM | Last update: February 19, 2022Score: 4.6/5 (41 votes)
In common law countries such as the United Kingdom, the Philippines and New Zealand, passing off is a common law tort which can be used to enforce unregistered trade mark rights. The tort of passing off protects the goodwill of a trader from misrepresentation.
What type of tort is passing off?
In Canada, passing off is both a common law tort and a statutory cause of action under the Canadian Trade-marks Act referring to the deceptive representation or marketing of goods or services by competitors in a manner that confuses consumers.
Which form of law does passing off form part of?
Passing off is a common law tort which is applicable in Malaysia as a form of Intellectual Property right against unauthorized use of a trademark which similar to a registered/ unregistered trademark. No one has the right to represent his goods as goods of another.
What is an action for passing off?
“If a person sells his goods as the goods of another” then the trademark owner can take action as this becomes a case of passing off. Passing off is used to protect or safeguard the goodwill attached to an unregistered trademark. ... The passing off law has changed over time.
Is passing off a crime?
It's not a criminal offence to pass off one business as another. It gives rise to civil liability, primarily for damages, which is a civil remedy. Businesses passing off are also likely to be on the receiving end of an injunction to halt further passing off, as was the case with Mr Montgomery in the example above.
Law of Torts - Tort of passing of
Can you sue for passing off?
In each case of passing off, the key issue is the danger of misrepresentation as to the origin of goods or services. If someone leads consumers to believe that their goods or services are connected with another business when they are not, they may give the other business grounds to sue for passing off.
Is passing off based on legislation?
Passing off and trade mark law
Passing off is a common law cause of action, whereas statutory law such as the United Kingdom Trade Marks Act 1994 provides for enforcement of registered trademarks through infringement proceedings. ... Passing off does not confer monopoly rights to any names, marks, get-up or other indicia.
What is meant by passing off?
the illegal act of selling a product that is similar to one that another company has legally protected by a trademark: The restaurant was found guilty of passing off, as its name and logo were too close to those of a major chain.
Is intention required for passing off?
Intention is not a necessary element of passing off. Success in a passing off claim does not depend on the intent of Trader B in making the misrepresentation.
What is passing off and infringement of trademark?
When a person uses a trademark or service mark without permission, it is trademark infringement. As previously indicated, passing off applies to unregistered trademarks, while trademark infringement applies to registered trademarks. Trademark infringement mentions in Section 29 of the Trademark Act of 1999.
What is passing off South Africa?
In a famous South African case, the Supreme Court of Appeal described passing off as an action that is designed to “protect a business against a misrepresentation of a particular kind, namely that the business, goods or services of the representor is that of the plaintiff or associated therewith.”1 Passing off is, of ...
What does passing off mean in business?
In very simple terms, passing off is the unauthorised use of another party's name, mark or get-up (meaning the appearance or “look and feel” of a product) for commercial gain. Get-up can include a distinctive container, colours of the packaging or marketing materials.
How do I protect myself from passing off claim?
- Use of defendant's own name.
- Use other than in the course of trade.
- Claimant cannot show sufficient goodwill.
- Claimant's mark is not distinctive.
- Claimant's mark is generic.
- Claimant's delay in taking action.
- No proof of misrepresentation.
What is Detinue law?
The unlawful detention of chattel of another person who has a right of immediate possession to it. Refusal to return it upon demand by the owner who is in immediate possession of the property.
Is occupiers liability a tort?
Occupiers' liability is a field of tort law, codified in statute, which concerns the duty of care owed by those who occupy real property, through ownership or lease, to people who visit or trespass. ... In addition, occupiers' liability to trespassers is provided under the Occupiers' Liability Act 1984.
What is passing off in a pub?
Passing off is the act of serving products that are different from those advertised or asked for by the customer, without notifying them.
What is a tort in court?
A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. In the context of torts, "injury" describes the invasion of any legal right, whereas "harm" describes a loss or detriment in fact that an individual suffers.
What are the criteria for determining if there is passing off in domain name dispute?
The UDRP procedure is designed for domain name disputes that meet the following cumulative criteria (UDRP, paragraph 4(a)): (i) the domain name registered by the domain name registrant is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) the domain name ...
What is tort of negligence?
The most common tort is the tort of negligence which imposes an obligation not to breach the duty of care (that is, the duty to behave as a reasonable person would behave in the circumstances) which the law says is owed to those who may foreseeably be injured by any particular conduct.
Is breach of contract a tort?
In contract law, the duty that is breached is a duty established by the parties in their agreement. In conclusion, breach of contract is not a tort. Both tort law and contract law are branches of civil law that cover many different types of injuries and violations.
What is infringement does it differ from passing off law?
In an action for infringement, the Plaintiff on account of it being a registered trade mark in dispute claims to have an exclusive right to use the mark concerning those goods. However, a passing off by a person of his goods as those of another, in essence, is an action of deceit.
Is goodwill an intellectual property right?
Sales or acquisitions of businesses are likely to include the transfer of goodwill and / or other intellectual property (IP). ... Intangible fixed assets (IFAs) are assets which are defined as intangible assets under GAAP, which have a continuing use in the company's trade.
Is passing off unfair competition?
Passing off and unfair competition
Passing off protects against those seeking to take unfair advantage of a business' goodwill and reputation in order to gain a head start.
How do you prove misrepresentation passing off?
- They possess a reputation or goodwill that is associated with their goods or services;
- There has been a misrepresentation by the defendant which has led to confusion;
How do you prove goodwill is passing off?
- a goodwill or reputation attached to the relevant goods or services.
- a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that the goods or services offered by it are the goods or services of the claimant.