Passing Off - the tests
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14 April 2011
There are two different tests that the
court will normally apply when looking at a case which involves the
tort of passing off. These tests will be explained below.
Passing off is a tort which has been
developed from the tort of deceit, this is where someone knowingly or
recklessly makes a false statement of fact intending this statement to
be acted on. The definition of passing off is 'conducting one's
business in such a way as to mislead the public into thinking that
one's goods or services are those of another'.
The first test, Lord Diplock's test, set
out in the case of Adovocaat, he identified 5 factors that were present
in all cases of passing off, and they were:
by a trader in the course of trade;
to prospective customers or ultimate
which is calculated to injure the
claimants goodwill or business; and
this causes actual damage to business or
goodwill of the trader by whom an action is or will be brought.
The second test is Lord Oliver's test set
out in the Jif Lemon case, in this test he reduced the Adovocaat test
to what is known as the 'classical trinity' which is followed by the
Goodwill or reputation attached to the
goods or services
A misrepresentation to the relevant public
Causing actual or likely damage.
By Krystal Ramsammy - an
assistant to Jody
About the Author
Lawdit Solicitors offer services and
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agreements. We are experts in commercial law with a heavy emphasis on
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Article Published/Sorted/Amended on Scopulus 2011-04-29 21:45:20 in Legal Articles