What is passing off?

If you discover that somebody is using your brand, but you have not registered is as a trade mark then all is not lost.

Passing off is a common law action that allows a mark that has not been registered to be protected by law if it has gained a reputation with consumers. This allows you to stop others using your mark on goods or services without permission

There has been tests developed through the courts to succeed in a case of passing off. To be successful, you must prove that:

1. The mark is yours
2. The mark has built up a reputation, known as goodwill
3. That goodwill/reputation has been harmed in some way by the other party’s use of it

This may seem simple, however an action of passing off can be very time consuming as it requires a lot of evidence to prove the above points. Therefore the cost of passing off is very high. By registering your mark this cuts both the time and cost of a case of infringement in half, making it much easier to make a claim.

Therefore instead of taking the risk and having to rely on passing off, register your mark with trademarkroom and have peace of mind!

By Ellis Sweetenham