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"Passing off" - Protecting your goodwill |
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by
LawDotNews
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Published
2009/04/02 12:00:00 AM
(Viewed
661
times) |
You’ve built up your business through “blood sweat and tears” (and a lot of expertise); and now the opposition is trying to catch a free ride by deceiving buyers into thinking that its product is yours, or that it is in some way associated with you. How can you protect yourself?
First prize is often to register a distinguishing trademark, which you can then defend from infringement using the Trade Marks Act. A lesser degree of protection is given by the common law to unregistered trademarks (registration is not necessary to give protection to a mark, it just makes it much easier to defend) via a prohibition against what is known as “passing off”.
You will need to prove that: -
1. Your “name, mark or get-up” has a reputation i.e. has become distinctive of your goods or services in the sense that the public now associates them with your business or products; and
2. The opposition has made a representation – express or implied - that causes the public to be “confused or deceived”; and
3. Your goodwill or “trade reputation” has been damaged as a result.
Take advice upfront on the best way to protect your name and branding.
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