Passing off disputes: Essential protection of your brand’s goodwill
Goodwill is the commercial bedrock of your business. It is the reputation, trust, and customer loyalty you have built over time.
When another business misrepresents their goods or services as being your own (in part of in full), they are attempting to piggyback on your hard-earned goodwill.
This act of "passing off" can cause significant damage to your reputation and lead to a direct loss of sales.
Unlike a registered trade mark, which is a statutory right, passing off is a common law right that protects your unregistered branding, "get-up" (the overall appearance of a product or service), and reputation.
It is a critical tool for fighting unfair competition when a registered right may not exist or doesn't cover the full scope of the misrepresentation.
Passing off disputes: How we assist you
Our team has extensive experience in both enforcing and defending passing off claims; which may also be part of a larger set of claims (e.g. trade mark infringement, design right infringement, copyright etc.).
We understand that in these disputes, evidence is everything.
Our work involves meticulously collecting and presenting the three core elements required for a successful claim:
- Goodwill: Proving that you have an established reputation in your brand.
- Misrepresentation: Demonstrating that the defendant has misled the public into believing their goods or services are yours.
- Damage: Showing that this misrepresentation has caused, or is likely to cause, a loss of trade or damage to your goodwill.
We work closely with you to gather and present this evidence in a compelling, effective and inarguable manner, whether through consumer surveys, sales data, or other forms of market proof.
Crucially, passing off can be an alternative avenue to enforcement in registered trademark cases, providing another angle of attack.
Our unique capability
Passing off cases are often complex and require a high degree of strategic thinking.
Our unique capability lies in our forensic approach to gathering evidence and our pragmatic focus on commercial reality.
We don't just fight for a legal win; we fight for a commercially-sound outcome that protects the integrity of your brand and allows your business to thrive.
We understand that a passing off claim can be a resource-intensive exercise.
We will provide you with a clear, honest assessment of your chances of success, and a litigation strategy that is: laser-focused, cost-effective and minimises negative impact on your business overall.
Passing off disputes: Common questions and answers
What's the difference between passing off and a trade mark infringement?
Trade mark infringement relates to the breach of a registered trade mark filed at the UKIPO or EUIPO. Passing off protects your unregistered rights i.e. the goodwill and reputation built over time.
Passing off requires proving three elements: goodwill, misrepresentation, and damage, making it a more forensic and evidence-heavy claim that relies on commercial market proof rather than a certificate of registration.
How can I prove I have "goodwill" in my brand?
Goodwill is proven by commercial evidence that shows the public associates your brand with your business.
This includes sales figures, geographical reach, detailed marketing spend, sustained press coverage, customer testimonials, and longevity of use in the market.
We work with our clients to forensically quantify this goodwill, translating commercial success into a legally defensible asset value that holds weight in negotiation and court.
What kind of evidence do I need to bring a passing off claim?
As detailed above, you need evidence proving the three pillars of passing off: 1) goodwill, 2) misrepresentation (evidence that the public is actually being confused e.g., confused customer emails, mistaken press reports, or evidence of competitor intent), and 3) damage (quantifiable loss of sales, diversion of trade, or damage to your reputation).
Our first step is a forensic evidence sweep to ensure we have every piece of commercial and market evidence required to build a compelling case.
Is it possible to settle a passing off dispute out of court?
Absolutely. Most commercial disputes, including passing off, are resolved outside of court through alternative dispute resolution (ADR) like mediation or direct negotiation. In these cases we can seek to settle claims quickly and in your favour.
Our litigation expertise is critical here: we negotiate from a position of strength, leveraging our detailed assessment of how your goodwill and evidence would perform in a full trial to secure a rapid, commercially favourable settlement, saving significant time and cost.
Passing off disputes: Next steps
Is your business's reputation and goodwill under threat from a passing off dispute?
Arrange an appointment with our team below to assess your situation and find out your next steps.
The content on this page is provided for general informational purposes only and does not constitute legal advice. No solicitor-client relationship is created by your use of this site. While we strive to ensure the information is accurate and up-to-date, it should not be relied upon as a substitute for professional legal counsel. For specific advice regarding your legal situation, please contact us directly to arrange a consultation.
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