Passing Off

Introduction

Now more than ever it is important to protect the interests of

your business and to make sure that these are not prejudiced by the

acts of a competitor. What steps can you take if a competitor

represents his goods or services as being those of your business?

This is known as "passing off" and the law prevents one

trader from passing off his good or services as those of another

and benefiting from the reputation and goodwill built up by that

business. Legal action can be taken to obtain an interdict

(injunction) or compensation, or both, to protect your business

against passing off.

Requirements for an action for passing off

There are three things that a claimant has to establish in order

to be successful in an action for passing off: -

That there is a reputation/goodwill attached to the goods or

services he supplies.

That there has been a misrepresentation by the other party

(whether intentional or not) leading, or likely to lead, the public

to believe that the goods or services offered are those of the

claimant.

It is irrelevant whether or not the misrepresentation was intended

to mislead the public or even whether any members of the public

have indeed been misled - the test is simply whether the

misrepresentation is likely to mislead the public.

That he has suffered, or is likely to suffer, damage because of

the mistaken belief caused by the other party's

misrepresentation.

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