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What is misrepresentation in passing off?

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In a claim of passing off the claimant must prove a misrepresentation by the defendant to the public, which has led or is likely to lead the public, into believing that the goods or services offered by the defendant are the goods or services of the claimant. The public do not need to know the actual identity of the claimant. For example, it could be the brand the public recognises which is owned by the claimant. The misrepresentation may or may not be intentional.

Misrepresentation is at the centre of passing off. There is no action if misrepresentation has not taken place, even if customers have been confused and goodwill has been damaged. Confusion and misrepresentation are separate concepts. In many situations, legitimate competition can damage the goodwill of a competitor. Legitimate competition is encouraged by government policy and it should not be restrained by an action for passing off.

In a case of passing off misrepresentation often occurs when the defendant uses names, signs, logos, or marks which are like those of the claimant. However, as there is no property in signs, the claimant’s signs must be distinctive for them to relate to the claimant and the defendants sign must deceive actual or potential customers of the claimant. Names, logos, and marks can be registered as a trade mark.

In a case of passing off, distinctiveness is often a key element that needs to be proved by the claimant. If the defendant’s signs are identical to that of the claimant, misrepresentation would have occurred. If there are differences, then the degree of distinctiveness will be critically analysed to decide whether the use amounts to misrepresentation.

The case of Reddaway v Banham [1886] A.C. 199 has shown that the defendant does not need to act fraudulently. Innocent misrepresentations are actionable in the tort of passing off if all the elements are there.

A misrepresentation that fails to deceive anyone is not actionable. The court needs to decide that on the balance of probabilities a significant number of the of the public would be misled into purchasing the defendant’s product or service, whilst believing that it was the claimants.

A customer that observes a similarity between the two signs but understands that they represent different enterprises will not be considered as being deceived.

In the tort of passing off, misrepresentation is limited to the actions of a trader during trade. Situations where a non-trader makes misrepresentations about a business may be actionable in defamation or as malicious falsehoods. However, the courts have given quite a wide meaning with regards to a trader when deciding the status of the defendant in an action of passing off. The claimant must also be a trader, but the courts have also given a wide meaning to this requirement.

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