The practice of passing off involves misrepresentation on the part of the trader who gives consumers the impression that his goods are those of another.
A claim in passing off may provide a remedy for those whose goodwill is used without permission. In order to succeed in a passing off action the claimant has to prove:
- The goods possess a reputation or goodwill (i.e. the goods have a particular identifying feature)
- There has been a misrepresentation by the defendant, which has led to confusion
- This misrepresentation has caused damage to the claimant’s reputation or goodwill