A - A business such as this has developed a reputation and
customer goodwill through a great deal of effort. This goodwill is
a valuable asset, and the law will help a business such as this
protect that asset through the law of passing off.
Simply put, passing off is where one trader attempts to take
advantage of the business reputation of another, to the detriment
of that trader. A competitor may attempt to confuse the customer by
emulating the appearance, name or get-up of another's business
products, the aim being to persuade the customer that the products
of this unscrupulous trader are in fact those of a competitor with
significant goodwill. "Get-up" can include, for example, the manner
in which a product is packaged.
Such a trader may use a similar trading name, or use similar
packaging to those of his competitor. In these days of marketing on
the Internet, the use of similar business names can have far
reaching consequences. Searching the Web for one company may well
lead to the web site of another attempting to confuse the public by
adopting a similar name. In these circumstances, money spent
developing an impressive web site may well be money down the
You may discover that such a competitor is setting himself up in
business in such a way that there is real risk of confusion in the
minds of your customers.
To successfully prevent passing off it is necessary to show a
number of things. Firstly, it is necessary to show that there is,
in the minds of the public, a clear idea that a certain trade name
etc. is associated with your product or service. Secondly, you must
be able to show that because of the reputation of quality, which
has been developed over time, goodwill attaches to that trade name.
Thirdly, you must show that your competitor is indeed using a name
or get-up that can cause confusion in the minds of customers.
Fourthly, you must be able to show that your business will suffer
loss or damage to its goodwill as a result of your competitor's
Where it can be proved that there is the potential for actual
harm being done to your business it is possible to ask the court to
prevent the guilty party from misrepresenting themselves in this
way. The court can grant an interdict prohibiting the passing off,
and in addition, can award compensation for damage done to your
business or loss of profit.
A reputation for quality and customer goodwill is not achieved
easily. The law is there to protect you and your business if these
Clark, Partner - Tel: 01382 229 222
Associate - Tel: 01382 229 222