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Passing off.April 11, 2012
If you do not have a registered trade mark or are unable to obtain one the law of passing off may protect your brand. It aims to protect businesses and consumers from confusion in their goodwill in trade. When your business becomes successful, others may try to pass themselves off as your company. If a competitor creates potential confusion intentionally or not and your customers could mistake another business for yours, this is passing off.
The most common form is if a competitor uses a similar sounding name. That business could trade using a name similar or with only slightly altered spelling. They could use a design or logo similar to yours. They may use colours on their website the same as your own and have leaflets, or brochures similar to yours. The combined effect may be to create confusion and to take customers from you.
To protect a brand the owner must demonstrate that:
- it has established goodwill and reputation in the brand;
- that another undertaking is using a brand which is similar to or the same as the owner’s brand;
- that, by doing so, it may cause the public to be confused into thinking that it is associated with the business of the owner of the brand; and
- that it causes actual damage to the business or goodwill of the brand owner.
It isn’t easy to show passing off, a lot of evidence is needed to show the possibility of confusion or actual confusion and it is usually expensive to do so.
You will need to collect evidence. Copies of brochures leaflets and note paper of the other company. A screen shot of their website. Photographs of any signage.
Evidence from customers and suppliers as to the the misrepresentation which has resulted in them using the other company for supplies or purchasing its products.
Carruthers Law are able to advise as to whether passing off is occurring in a particular situation, provide advice as to the options available and then draft correspondence and issue proceedings on your behalf as required.