The goods or services in question must have goodwill attached to them. This specifically means that the goods will have particular identifying features or specifics that will enable members of the general public or a specific section of the general public to associate with those particular goods or services.
There must be a misrepresentation on behalf of the defendant that will lead or be likely to lead those members of the general public to believe that the goods offered by him are in fact the goods or services of the other company. Please note that this misrepresentation does not have to be intended it just has to lead the public to believe that.
This misrepresentation damages the goodwill of the claimant.
There is no Statute concerning the law of passing off which has been developed in the UK solely by case law.
This means that there is no legal definition for the above three tests with the most difficult to prove that of goodwill in a product, something which is often described as the consumer attraction to a particular brand. This attraction to a particular brand is what enables different consumers to distinguish between different brands on the market. The problem is that it is a very subjective test as the goodwill associated with one particular company may have very different affects on different members of the general public.
- The claimants mark, slogan etc is not distinctive
- The mark, slogan etc has become generic
- The defendant may be innocently using his or her own name
- The claimant has given consent
Can I clarify anything for you about this today please?