ABSTRACT

Passing off protects the property in the goodwill of a business from erosion arising from misrepresentations made by others. Closest to an action for registered trade marks infringement, an action for passing off enables a trader to claim against another (usually a competitor) who by way of misrepresentation seeks to unfairly appropriate or damage the good will which the first trader enjoys. Whilst legitimate competition is acceptable, a trader must not ‘sell his own goods under the pretence that they are the goods of another man’ (Perry v Truefitt (1842)). This is the basis of the common law tort of passing off. As part of the common law, its principles are open to evolution and restatement, so no precise definition can be formulated. The history of passing off shows that it is adaptable to a wide variety of situations and, as long ago as Spalding v Gamage (1915), it was recognised that the range of circumstances to which a trader may have recourse to such an action cannot be exhausted.