Chapter 6 Passing off

Question 1

What is the definition of passing off and in which case was this defined?

Answer 1

Reckitt & Colman - No man may pass off his goods as those of another

Question 2

What are the requirements of passing of and which case is the leading case?

Answer 2

Reckitt & Colman:

1. Reputation
2. Misrepresentation
3. Damage

Question 3

What is the definition of goodwill?

Answer 3

The benefit and the advantage of the good name, reputation and connection of a business. It is the attractive force which brings in custom. Goodwill has no independent existence, it must be attached to a business.

Question 4

When will goodwill arise?

Answer 4

The claimant must proof that the sign has become so closely associated with his goods or services as to acquire a secondary meaning, such that the sign is associated only with the claimant.

Question 5

What is the main difference between misrepresentation and misappropriation?

Answer 5

Misappropriation does not require any misleading of or confusion of the public

Question 6

Describe 4 different forms of misrepresentation

Answer 6

1. Source/origin
2. Quality
3. Connection
4. Endorsement (reverse passing off)

Question 7

What is another requirement for misrepresentation?

Answer 7

It must be deceptive - show that the misrepresentation has deceived or is likely to deceive the public.

Question 8

What is reverse passing off?

Answer 8

Where a business wrongly asserts that the goods and services offered by a third party are in fact his own.

Question 9

State 3 heads of damage for the action of passing off

Answer 9

1. Loss of sales
2. Diversion of custom
3. Damage to the reputation of the business

Question 10

What is the leading case for an action of passing off regarding character of personality merchandising?

Answer 10

RIHANNA - see details of the case online. Depends on the circumstances of the case, courts have been reluctant with giving protection as it is not always known if the public was confused.