Our Passing Off Claim Service
Who We Can Help
Our Passing Off Solicitors advise businesses, entrepreneurs and brand owners whose goodwill or reputation is being misused or put at risk by another party.
We work with businesses of all sizes, from start-ups and growing companies to established UK and international organisations.
We can also advise businesses facing allegations that their name, branding, products or services amount to passing off.
Whether your brand is registered as a trade mark or you are relying on the goodwill you have built up in an unregistered name or brand, our Intellectual Property Solicitors can help you understand and protect your position.
How We Can Help
Our Passing Off Solicitors can help you:
- Assess whether you have grounds to bring or defend a passing off claim.
- Establish and evidence the goodwill and reputation associated with your business, brand, goods or services.
- Advise where another party’s name, branding, packaging or marketing may create confusion or misrepresent a connection with your business.
- Respond to allegations of passing off made against you or your business.
- Prepare and respond to letters before action and negotiate with the other party to resolve a dispute.
- Seek urgent remedies, including interim injunctions where appropriate.
- Pursue or defend court proceedings and advise on remedies including damages, an account of profits and the delivery up or disposal of infringing goods.
We will assess the commercial and legal issues involved, explain your options clearly and develop a strategy focused on protecting your business and achieving your objectives.
What is passing off?
In England and Wales, you may be able to protect an unregistered trade mark or brand through the common law action of passing off.
This remedy protects the goodwill and reputation built up in a mark where another party misrepresents its goods, services or business as being connected with yours.
Passing off is a tort, and the general limitation period for bringing a claim is six years from the date the cause of action accrued, although the circumstances of each case can affect how this applies.
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
- 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
Our Approach to Passing Off Claims
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 with Passing Off Claims
Safeguarding the CRONUTS Concept – Enforcing International Trademark Rights for a Leading New York Pastry House
We act for a New York-based pastry house which invented the CRONUTS products sold worldwide.
We represent our clients' interests in the UK and Europe and are retained to enforce the clients' international trademarks.
Our work requires us to trace and stop manufacturers and generally assist the client in policing its IP rights on a daily basis.
Why Choose Our Intellectual Property Solicitors?
- Our intellectual property experts advise clients on a broad range of intellectual property matters, from initial registration and exploitation to protection and enforcement.
- Our specialist IP litigation team is also highly experienced in handling business disputes involving intellectual property.
- Myerson is a member of the Intellectual Property Lawyers Association (IPLA), an association of law firms with an established intellectual property office. Our membership provides our clients and us with access to a wealth of knowledge and expertise in intellectual property.
- Through our many years of service, we have close working relationships with trade mark and patent attorneys and regularly liaise with them on a wide range of intellectual property issues, such as registering trademarks, patents and design rights, and when disputes arise concerning intellectual property rights. These working relationships are a key element of the service we offer to our clients.
- Myerson is also the Manchester and Cheshire law firm member for the MSI Global Alliance, a top 20 ranked international association of independent professional firms. As the IP matters we deal with often involve an international element, we can call upon the expertise and knowledge of our fellow MSI members to ensure that our client's global interests are protected.
Passing Off FAQs
What is passing off?
Passing off is a common law action that can protect the goodwill and reputation associated with a business, its goods or its services, even where the relevant name or mark is not protected by a registered trade mark.
A passing off claim may arise where another party makes a misrepresentation that causes, or is likely to cause, the public to believe that its goods or services are connected with another business, resulting in damage to that business's goodwill or reputation.
What is a passing off claim?
A passing off claim is a legal claim brought where one party believes another party has misrepresented its goods, services or business in a way that causes, or is likely to cause, confusion and damage the claimant's goodwill.
Passing off claims can involve the use of business or product names, branding, packaging, get-up or other distinctive features associated with a business.
Passing off can also arise where another party registers or uses an online domain name that is sufficiently similar to your business name, trade mark or other distinctive mark to create a misleading impression of association.
The use of a domain name, website content or online branding may cause customers to believe that the website, products or services are connected with your business.
Evidence such as domain registration details, website screenshots, customer enquiries, search results and examples of lost sales may be relevant.
Our Passing Off Solicitors can advise on the available options, which may include correspondence with the domain holder, negotiation, domain name dispute procedures or court proceedings where appropriate.
What does a passing off solicitor do?
A passing off solicitor advises businesses on bringing and defending passing off claims.
This can include assessing the strength of a claim, gathering evidence of goodwill, misrepresentation and damage, preparing or responding to letters before action, negotiating with the other party and seeking remedies such as an injunction or damages.
Where a dispute cannot be resolved, a passing off solicitor can advise and represent you throughout court proceedings.
What must you prove in a passing off claim?
To succeed in a passing off claim, you generally need to establish three elements:
- Goodwill – your goods or services have acquired goodwill or reputation that distinguishes them in the minds of the relevant public.
- Misrepresentation – the defendant has made a misrepresentation to the public which leads, or is likely to lead, people to believe that its goods or services are connected with yours. The misrepresentation does not have to be intentional.
- Damage – the misrepresentation has caused, or is likely to cause, damage to your goodwill.
Whether these requirements can be established will depend on the circumstances and evidence available in each case.
What remedies are available for passing off?
The remedies available will depend on the circumstances of the claim. They can include:
- An interim or final injunction preventing the defendant from continuing the passing off.
- Damages for losses caused by the passing off.
- An account of profits made by the defendant as a result of the wrongdoing.
- Delivery up or disposal of infringing goods.
The appropriate remedy will depend on factors including the nature of the passing off, the damage suffered and the outcome the claimant is seeking.
What evidence is needed for a passing off claim?
Evidence will usually be required to establish goodwill, misrepresentation and damage.
Depending on the circumstances, this could include evidence of sales, turnover, advertising and marketing expenditure, the length and extent of use of a name or brand, website and social media activity, press coverage and other evidence demonstrating the reputation of the business.
Evidence of actual customer confusion, communications from customers, examples of the defendant's branding or marketing and evidence of lost sales or other commercial damage may also be relevant.
Our Passing Off Solicitors can assess the evidence available and advise on any additional evidence that may be required to support your claim.
How long do you have to bring a passing off claim?
Passing off is a tort and, in England and Wales, the general limitation period for an action founded on tort is six years from the date on which the cause of action accrued.
However, determining when the limitation period starts and how it applies can depend on the circumstances of the case.
It is important not to delay seeking advice. If the passing off is ongoing, acting quickly may also be important where you want to seek urgent relief, such as an injunction preventing the other party from continuing its activities.
Passing off vs trade mark infringement: what is the difference?
Passing off and trade mark infringement can both be used to protect a business's brand, but they are different legal claims.
Trade mark infringement generally concerns the unauthorised use of a sign that conflicts with rights arising from a registered trade mark.
Passing off is a common law action and can protect goodwill associated with an unregistered name or mark.
A passing-off claimant must establish goodwill, misrepresentation, and damage. Where a registered trade mark is available, a trade mark infringement claim is based on the statutory rights provided by that registration and has different legal requirements.
Depending on the circumstances, a dispute may involve both trade mark infringement and passing off.
Testimonials
Julie L
Richard and Olivia were great to work with from start to finish. They took time to understand our industry, and how we worked as a company. This, mixed with their professional knowledge, allowed the process to be seamless, and produce specific documents for our business. I would highly recommend the team, and I am pleased that I have built this relationship so that if any services are required going forward, I will be able to contact them knowing I will receive a high level of service.
Nick
We had an outstanding experience with Myerson Solicitors. From start to finish, the team was professional, efficient, and approachable. Our solicitor, Olivia Whittaker, was particularly remarkable - her attention to detail, clear communication, and expert guidance made the entire process smooth and worry-free. We couldn’t be happier with the outcome and highly recommend Olivia and the firm to any business seeking expert commercial legal advice.
Richard
We needed to rewrite our online terms and conditions to ensure compliance with all legal aspects. Olivia and Richard were outstanding in their advice and assistance. They guided us through every step of the process, providing valuable insight and expertise. Their professionalism and clear communication made a complex task manageable, and we couldn't be happier with the service they provided.
Andrew
I engaged Richard Meehan, Myerson Solicitors, for the drafting of a complex multi-product exclusive supply agreement. He was thorough, explained in plain English and kept me updated consistently throughout. In addition, his after service communications were excellent, ensuring that we felt supported in our negotiations. Great service, before, during and after, which is the benchmark that I have come to expect from all my dealings with Myerson Solicitors. A great team.
Adrian
Richard and the team at Myerson were excellent. They guided me through a relatively complex legal situation and weren't afraid to admit when they needed to bring in other divisors to offer the best guidance which I appreciated. It was all done efficiently and for a fair price. A great experience.
Mo
I recently worked with Richard to draft an international supply agreement, and I couldn't be happier with the service I received. He was highly knowledgeable, easy to work with, and always responded promptly to any questions I had. I felt well-supported from start to finish and would highly recommend Richard to anyone looking for a reliable and experienced solicitor for commercial contracts.
Ben
Exceptional service, Richard and his colleagues were professional and personable not like other law firms we have worked with in the past. It was clear from the outset that Myerson were very down to earth and willing to put in the work to help us achieve our goals. They were a delight to work with on our contract negotiations. I would highly recommend them.
Aceplan Player Development Ltd
I worked with Richard Meehan and Olivia Whittaker, who helped me to build a comprehensive set of legal documents for my software business. This included terms and conditions for the different user types, privacy and cookie policies, and general website terms. Their legal knowledge and what was required for my business was very impressive. It left me feeling reassured and confident in the work they prepared. All the deadlines were met and I'm really satisfied with the end product.
Torram Ltd
I couldn't recommend Myerson Solicitors highly enough. Richard and Olivia were fantastic to work with, they were extremely professional and knowledgeable and knew how to get the best out of my contract. They were very responsive and ready to answer all of my questions whenever I asked them. They are a safe pair of hands for anyone starting out in business and don't have any personal recommendations for solicitors. They're very capable and very pleasant to work with and compared to other companies, fairly priced.
Peter
Myerson deserves more than 5 stars. I am exceptionally pleased with the work done by Richard M at Myerson who worked on the Terms for my startup. Incredible depth of knowledge and amazing turnaround time. Highly recommended!
Matt
As a start-up company, we needed specific advice, work and contracts drafting on key contracts. (Customer and Supplier) along with specific website and cookie policies. Myerson's completed this work on time and to a high standard. Importantly, they advised on which areas to focus on to spend time and money - very important for a start up. Every member of the team was very capable and if they did hand over, the person handover to was always fully briefed and up to speed with our account and work. Highly recommended.
Jason
We needed a flexible VAR agreement for our AI based software offering that could be easily adapted to a wide variety of partnerships, engagement models and go-to-market strategies. The Commercial team did a great job making sense of our sometimes confused and over-complicated requirements, and simplified it down to exactly what we needed. Soon after we successfully used the agreement with a large multi-national corporation. All in all a great result and a great experience.
Joe
Very pleased with the service received in updating T&Cs and other legal documents. Excellent communication and useful discussions, getting to understand our business and its requirements.
Emad Salib
The team were highly responsive, clear in their advice, and demonstrated a strong commercial understanding of our business and the sector we operate in. They provided practical, well-structured guidance and were proactive in highlighting potential risks while offering sensible solutions. It was a pleasure working with them, and we would not hesitate to recommend Myerson.
Steve Ridd
Rich Meehan at Myerson provided clear, pragmatic and highly effective support on a range of complex commercial matters. His advice was responsive, commercially focused and instrumental in helping us manage risk while progressing key initiatives. Richard worked collaboratively with the executive team, translating legal complexity into practical guidance, and I would have no hesitation in recommending him and Myerson for trusted commercial legal support.
Pasha Melli - Founder & Director, Hestia Smart Living
Rich Meehan, Olivia Whittaker and the team at Myerson prepared Hestia SL Letter of Engagement, Standard Terms of Supply and a client onboarding SOP, and the experience was excellent from start to finish. Rich is knowledgeable, patient and genuinely practical. He explains complex points clearly and in the context of how our business actually works, from setting sensible liability caps against our insurance cover to drafting terms we could build straight into our client portal. He was flexible when our timelines slipped, kept the matter moving without ever being pushy, and was transparent and fair on costs throughout. We now have robust, professional documentation we use with every new client, and I would recommend Rich and Myerson without hesitation.
Meet Our Intellectual Property Solicitors
Home-grown or recruited from national, regional or City firms. Our intellectual property lawyers are experts in their fields and respected by their peers.
Contact Our Experts
You can contact our lawyers below if you have any more questions or want more information:
0161 941 4000
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