Passing off

An equitable tort in which the defendant imitates the appearance of a rival trader’s product in the presentation of their own (for example, by use of similar colours, text font, language, and packaging) in order to ‘pass off’ their own product as the ‘real thing’, unjustly capitalising on the brand strength of a better-known product. An action is taken by the respondent in such a case to protect the integrity of their brand.

Extended passing off occurs where a descriptive term associated with some distinctive and recognisable product made by a class of producers is misapplied.

For example, in the case of J. Bollinger v The Costa Brava Wine Co, vignerons from the Champagne region sought to prevent The Costa Brava Wine Co from incorrectly applying the term ‘champagne’ to their product (which was, in fact, actually just sparkling wine – only sparkling wine made from Champagne grapes can correctly be called ‘champagne’).

Passing off is actionable if the defendant’s conduct is likely to mislead the public. The remedies are damages, injunction and account of profits. Passing off is often plead in conjunction with misleading and deceptive conduct.