Passing off is the false representation of ones prod
uct or business as that of another person, thereby deceiving buyers to patronise it. Passing off is the selling of one’s products, or the carrying on of one’s business as if it were that of another person whose reputation and goodwill one thereby enjoys. In the tort of passing off, a person carries on his business or sells his goods under a name, trademark, descriptions imitation of another person’s product in order to deceive the public to patronise it. In other words, it is the passing off or presentation to customers of one’s products, services, or business as that of another person who reputation and goodwill one thereby enjoys. Passing off is a pretence by one that his goods or business are those of another person in order to capture the patronage of the customers of a rival trader and enjoy his goodwill.
Wherever a person sells his goods, or carries on his business under a name, trademark, description or otherwise does anything to mislead the public into believing that the goods or business are those of another person and thereby takes advantage of that person’s reputation and goodwill, he commits the tort of passing off. Usually, passing involves one form of misrepresentation or the other to make the public patronise one’s goods or business. An action lies in passing off for damages, an account, for profit and seizure of the products and injunctions to restrain the defendants from continuing to do so in the future.
Purpose of Paw of Passing Off
The tort of passing off is common in a competitive business community or economy. People resort to every strategy to market their products and services, to survive and to expand their business. The tort of passing off is designed to protect a person’s business interests from familiar trade practices and sharp practices of other persons. It protects the benefits and advantages of the good name, quality, reputation and customers of the business.
It protects that attractive force of business which brings customers to it. The tort of passing off protects a business against misrepresentation of the business, directed at its customers and calculated to damage the reputation and goodwill of the business. Sir John Salmond in his book Law of Tort stated thus; “The law is designed to protect traders against unfair competition which consists in acquiring for oneself the benefit of the reputation already achieved by rival traders.
Also Lord Kingdom in Leather Cloth Co V. American Leather Cloth Co stated, “The fundamental rule is that one has no right to put off his goods as the goods of a rival trader.
When Does Action For Passing Off Lie
Their action for passing off lies when there is a misrepresentation made by the defendant in the course of trade to prospective customers which is calculated to injure the business and goodwill of another person and which causes damage to the person’s business and goodwill or will likely do so.
The tort of passing off is actionable per se on its occurrence. A plaintiff does not need to provide damages in order to succeed. The right of action lies even though no damage has been suffered or proved. The probability of damage occurring is enough for a plaintiff to succeed.
Therefore, once passing off has been committed, the plaintiff has right to sue and is entitled to remedy.
The common forms of passing which are easily noticed in the market are: trading with a name resembling that of the plaintiff, marketing a fake product as that of the plaintiff by using the plaintiff label or design, marketing a product with a name resembling that of the plaintiff’s goods and marketing products with the plaintiff’s trademarks or its imitation.
Others include, imitation the appearance of the plaintiff’s products, selling inferior or expired goods of the plaintiff as current stock; and false advertisement by copying the plaintiff’s advertisement etc.