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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:

A misrepresentation;

by a trader in the course of trade;

to prospective customers or ultimate consumers;

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 courts today:

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 Tsigarides

About the Author

Lawdit Solicitors offer services and advice for litigation, commercial contracts, Intellectual Property and IT legal agreements. We are experts in commercial law with a heavy emphasis on Intellectual Property, Internet and e-commerce law. Lawdit is a member of the International Trademark Association, the Solicitors' Association of Higher Court Advocates and we are the appointed Solicitors to the largest webdesign association in the world, the United Kingdom Website Designers Association.

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Article Published/Sorted/Amended on Scopulus 2011-04-29 21:45:20 in Legal Articles

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