|
The tort of passing off applies where there
is a representation that a person’s goods or
services are those of someone else. To
establish passing off, the plaintiff must prove
a misrepresentation made by a trader in the
course of trade to prospective customers or
consumers that is intended to injure the
plaintiff's business or goodwill and that
caused actual damage to the plaintiff.
The misrepresentation can be about the name of
the product or the image that is presented by
the product. The tort of passing off is
not confined to the traditional concepts of
trade names and trademarks. It includes
such things as slogans and visual images where
they have become part of the goodwill or
reputation of the product.
The Trade Practices Act creates a statutory
tort that can be used in addition to, or in
substitution for, the common law tort of
passing off. The Act prohibits deceptive
or misleading conduct by a corporation.
It is only necessary to prove that the conduct
occurred in the course of trade and commerce,
and that it is misleading or deceptive, or
likely to mislead or deceive.
|
