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.
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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:
- He has “goodwill” or a reputation that spanned off his status or class.
- that there is a false and intentional misrepresentation by the defendant.
- 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.