ABSTRACT
Being a tort, one is forced to trawl through a considerable body of case law, primarily English, but also some more recent Irish case law, to extract a working definition of the tort, which allows one to understand and examine the various concepts which go to make up passing off. Each practitioner has his own preferred case which sets out the elements of
passing off. Here, the case of Ervin Warnink BV v J Townsend and Sons (Hull) Ltd [1979] AC 731, a case commonly called the Advocaat case, is used. In that case, Lord Diplock set out the five elements which must be present in a given set of circumstances to create a successful cause of action for passing off:
There must be a:
The only way to properly understand how to assess whether or not a case of passing off exists is to examine each of these five elements in turn, and discuss briefly the case law pertaining to each of these elements. Such a step by step approach should be used also by practitioners to assess, when approached by a client, whether or not passing off constitutes a reasonable plea. What then of the individual five elements?
