Passing off is a claim in common law that another person is making some false and intentional misrepresentation likely to induce people to believe that his goods or services are those of yours or endorsed by you or connected to you. 

The principle of Passing off seeks to protect the goodwill or reputation of a person and it seeks to prevent others from deceiving the public that the person has endorsed the goods or is related to the goods in order to benefit or have a free ride on that person’s goodwill: Goodwill is a form of legal property that can be protected hence the reason for the common law remedy under passing off for the aggrieved against the defendant. 

Passing off goes hand in hand with the intellectual property rights claim of trademark infringement. According to Section 3 of the Trademark Acts, the claim for damages for infringement of trademark rights can only be brought only by a person who has properly registered the trademark and certificate of trademark obtained but a person whose trademark is unregistered can seek redress under the common law of economic tort of passing off.

Section 3 of the Trademark Act provides thus:

No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trademark; but nothing in this Act shall be taken to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof.

To this effect, the Trademark act re-emphasized that though a person who has not registered a trademark cannot bring an action for trademark infringement but the aggrieved person can bring an action under common law for passing off against the defendant. 

Therefore, an action for passing off can come as a common law remedy when an aggrieved person did not register the trademark that has been infringed. 

However, for an aggrieved person to successfully maintain an action for the economic tort of passing off, the aggrieved person must successfully prove these three ingredients to the satisfaction of the court. 

They include; He must prove that: 

1. He has “goodwill” or a reputation that spanned off his status or class. 
2. that there is a false and intentional misrepresentation by the defendant. 
3. Finally, he must prove that he has suffered or is likely to suffer damages by the reason of the misrepresentation by the defendant.

In conclusion, in this period that “trademark” is trending in Nigeria due to some trademark infringement legal brawl, it is pertinent to bring it to the attention of readers that there’s an action called passing off and it goes hand in hand with trademark rights. Passing off is an action brought for damages and to get seek an injunction to stop a person from making some false representation likely to induce people to believe that the goods or services are those of the plaintiff or connected to his person or brand and a person can resort to action for passing off instead of an action for trademark theft or infringement if the person has no registered trademark. 

The Nigeria Customs Service (NCS) and a consortium, Trade Modernization Project Limited, on Monday 30th May 2022, signed a concession agreement worth $3.2bn to digitize operations of the border security and revenue collection outfit.

It was equally reported that the Federal Government of Nigeria expects to generate over $176bn from the deal.

At the agreement signing ceremony held at the Abuja national headquarters of the NCS were representatives of technical and financial partners in the deal, including African Finance Corporation and Huawei Technologies Company Nigeria Limited, a subsidiary of China-based Huawei Technologies Co. Ltd.

The Comptroller General (CG) of the NCS, Col. Hameed Ali (rtd.), in his remarks after the documents were signed, enthused that Nigeria was setting a pace that other African countries were looking forward to follow.

Ali said, “The journey has been long and tortuous, but we thank God that today we have signed the dotted lines. Today, we are happy to say that in Nigeria, we are going to be fully electronic, digitized and modernized. The success of this project will put Nigeria on the map.

“This project is very important in the sense that it has so many benefits that are lined up. The first benefit, which is tangible, is the fact that we are going to garner for this country, $3.5bn.

“To the Nigeria Customs, this is going to change the entire business process. It is going to put the Customs on the best part in terms of doing the business. It would remove all arbitrariness and human mistakes.

“It is a process that would ease the cost of doing business. It is a process that would also assist those of us who were given the task to manage with a simpler process of managing and monitoring.

The CG added, “Let me also underscore the fact that this project, having come this far, is a project that we must support in its entirety. There are rumours that this project is going to weed away officers. Let me allay that fear. We are even in need of officers.

“We have only 15,000 (of them) and by the mission and vision of the management, we will need nothing less than 30,000 people to be able to effectively and efficiently carry out the mandate given to us. So, there is no question of weeding (out) anybody.

The Chairman, Trade Modernization Project Limited, Saleh Ahmadu, who described the event as a ‘momentous occasion’, noted that the deal was a Public-Private Partnership (PPP) arrangement in line with the ICRC guidelines.

Ahmadu stated, “The $3.2bn investments required for the project is already being finalized through an AFC-led initiative. As the concession period begins, we wish to assure Nigerians that the revenue target of $176 billion for the Federal Government will be achieved, if not surpassed.

The Acting Director-General of the Infrastructure Concession Regulatory Commission, Michael Ohiani, noted that the Commission was mandated to regulate all PPPs entered into under the Infrastructure Concession Regulatory Commission Act, 2005.

This was indeed a commendable move as being made by the NCS, but it shouldn’t stop at that. Hence, more actions are henceforth required to follow suit towards realizing the actual goal of the digitization project.

It’s not anymore news that digitization is gradually dominating the formal sector, thus any institution or establishment yet to fully key into its numerous benefits is unequivocally still living in the past.

This therefore signifies that every other agency or body in Nigeria and beyond is expected to emulate this lofty effort for greater productivity.