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What is Passing Off? 

You can still protect your mark even if it is not a registered trademark.  This is through the common law action of “passing off”.  The underlying principle behind this action is that “a man is not to sell his goods under the pretence that they are the goods of another man”. 

In order to succeed in a claim for passing off, a claimant must prove:

  • Its goods or services have goodwill attached to them i.e. they have a particular image and reputation attached to them which enable the public to easily recognise those particular goods or services;
  • There has been a misrepresentation to the public (which does not have to be intentional) which would lead, or is likely to lead, the public into believing that the goods or services on offer are those belonging to the claimant; and
  • There has been damage caused to the goodwill or reputation of the claimant.

What Remedies are Available for Passing Off? 

There are several remedies available when a claim of passing off has been successfully established:

  • An interim injunction can be obtained before a full trial which prevents the defendant from continuing to “pass off” their goods or services;
  • Delivery up and/or disposal of the infringing goods;
  • Damages for loss of sales or damage to goodwill;
  • An account of profits which provides for the defendant to pay to the claimant a proportion of the profits it made as a result of the infringement; and

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Our Approach

Passing off claims can be extremely complex and challenging to fight.  

From our initial discussion, we will explore all of the potential options available and provide you with an effective legal strategy. There are different remedies available for passing off claims such as damages, injunctions or an account of profits however these will all depend on the context of your situation.

Our award-winning legal team will make sure that you are kept informed and confident about the action we are taking. The decision process will be firmly in your hands, with our full legal resource available to you at any time. 

Our Experience

Breach of Trademark 

We act for a New York based pastry house which invented the CRONUTS products which are sold worldwide.  We represent our client’s interests in the UK and Europe and are retained to enforce the client’s international trade mark.  Our work requires us to trace and stop manufacturers and generally assist the client in policing its IP rights on a day to day basis. 

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Meet Our Specialists

Home-grown or recruited from national, regional or City firms. Our specialists are experts in their fields and respected by their peers.

Carla Murray

Carla Murray

Carla is a Partner and Head of our Commercial Team

Vicky Biggs

Vicky Biggs

Vicky is a Senior Associate in our Commercial Litigation & Construction departments