PASSING OFF
DEFINITION
Passing off is a common law claim in the UK and Ireland that stops one trader from misrepresenting goods or services as those of another, protecting reputation and goodwill even without a registered trademark.
WHAT IT MEANS IN PRACTICE
To win a passing off claim a maker must show three things: goodwill attached to their name or get-up, a misrepresentation by the other party that confuses the public, and damage caused by that confusion. It is unregistered, so it exists purely by virtue of trading and building recognition.
This is a distinctly British and Irish tool. The US has no direct passing off action, relying instead on federal and state unfair competition law and the Lanham Act's trademark provisions, which work differently and generally require more formal proof of a protectable mark.
For independent makers without the budget for trademark registration, passing off is often the only defence against a copycat brand, packaging, or shopfront, provided they can show real market recognition.
AN EXAMPLE
Priya runs a ceramics studio called Kiln & Co, known locally through five years of markets and press coverage. A new seller opens as Kiln & Co Pottery two streets away using similar packaging. Priya has no trademark but can bring a passing off claim in the UK because of her established goodwill.
WATCH OUT
Passing off needs proven goodwill, so a brand-new name with no market recognition yet has almost nothing to sue on.
LAST REVIEWED