Elements Of Passing Off

Passing Off: Importance of a correct brand name
Passing off comes under the common law as one of the tort laws, which can be used to enforce unregistered trademark rights. The law of passing off prevents one person from misrepresenting his goods or services as that of another.
The concept of passing off has undergone changes in the course of time. At first it was restricted to the representation of one person's goods as those of another. Later it was extended to business and services. Subsequently it was further extended to professions and non-trading activities. Today it is applied to many forms of unfair trading and unfair competition where the activities of one person cause damage or injury to the goodwill associated with the activities

These three elements are also known as the CLASSICAL TRINITY, as restated by the House of Lords in the case of Reckitt & Colman Ltd v. Borden Inc . It was stated in this case that in a suit for passing off the plaintiff must establish the following:
• Goodwill or reputation has been attached to goods or services over the period of time.
• Misrepresentation on the part of the defendant, to the public (leading or likely to lead the public) to believe that the goods and services offered by him are that of the plaintiff's.
• Sufficient demonstration must be made that the plaintiff has suffered a loss due to the belief that the defendant's goods and services are those of the plaintiff's. (Can be actual loss or future loss)
In the present scenario the characteristics has been further studies and in the Judgment for the case Erven Warnink B.V. v. J. Townend & Sons (Hull) Ltd., 1980 RPC 31, Lord Diplock gave the essential modern characteristics of a passing off action. These are as follows:
• Misrepresentation,
• Made by a person in the course of trade,
• To prospective customers of his or ultimate consumers of goods or services supplied by