ABSTRACT

Passing off questions are popular with students. They are sometimes referred to by examiners in terms of the ‘common law rights’ of parties in problem questions. Actions in passing off should be understood as actions to protect unregistered trade marks. In a number of areas, there are overlapping principles with trade mark law. Questions should be approached by students as with questions on other aspects of the law of tort, where the prime remedy sought is an injunction rather than compensatory damages. Although the demise of passing off has been predicted in light of the expansion of what may be registered as a trade mark under the Trade Marks Act (TMA) 1994, it seems likely to remain a part of the law – and hence syllabuses – for years to come. Examiners are looking for the essential elements of the claim and their application, followed by the application of more specific authorities.