Passing off: Unhealthy business competition
Passing off: Unhealthy business competition.
The reputation of your company or trademark, logo is derived from the goodwill of your company, for that reason it protects your company from unhealthy competition in order to protect the economic interest of your company.
It came to my mind to talk about this topic where Cecee mentioned it in one of her Delta soap video advertisements as the Ambassador of Delta soap.
The main function of the passing off is the protection of consumers against confusion on the origin of a product.
It also serves as a protection to you as a trader against unfair business competition.
At this point you might still not understand this passing off. Let me break it down the more for you.
Passing off is when someone sells his own goods under the pretense that they are the goods made by your company. Example is people producing and selling fake Milo tea under the pretense that it’s from the original Milo tea company.
Another example is producing fake Amstel Malt and sell it to consumers. Let me tell you a story on passing off.
I went to a cosmetics shop beginning of last month and I saw Kylie’s cosmetic. I was surprised and I asked the woman “are you sure this is the original Kylie’s cosmetic? She said that they have a company in Nigeria. At that point I don’t know if what she said is true because I am not into that line of business but let’s assume it’s not true, then that’s a good example of what passing off means.
Producing and selling your product under someone’s business name.
Now passing off is not only limited to an exact copy of a company’s name or mark. Any similarity that is sufficient to result in confusion will qualify as passing off.
Giving a false impression that a celebrity is endorsing a product is likely to amount to passing off. It is passing off because it is the use of an individual name or personality without his consent.
Now, you know the summary of what passing off means, the next thing is to talk about the law that frowns at it. It is called the law of passing off.
The law of passing off protects both the consumer and traders from an unhealthy business competition.
The law protects and grants relief and injunction to traders, to your company whose goods or services have been passed off once it’s proved in Court. That’s what that law does for you.
In conclusion, to prove passing off of your goods and services in court you must establish and prove three things:
1. You must prove the goodwill and reputation attached to your goods and services.
Goodwill means the benefits and advantage of the good name, reputation and connection if your business.
2. Secondly, you must establish that there has been a misrepresentation of your goods and services by someone else to the public. Misrepresentation can take many forms. It may come by written, oral statement or by similarity in appearance or presentation of goods.
3. The last thing to prove in court is damage. You must demonstrate that you suffered or likely to suffer losses by reason of that person’s misrepresentation as to the source of his goods and services which he claims that it emanate from your company.
If you are unable to prove these three things in court then your lawsuit will fail.
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