Passing Off

Passing Off is a delict that seeks to protect the goodwill of a business.

Elements
In order to succeed in a case, the pursuer is required to prove
 * Existence of goodwill in the "Get Up" (packaging, branding, etc) of their goods and services.
 * Misrepresentation from the defender that is either causing, or likely to cause, confusion.
 * Either Damage, or the likelihood of damage (to their goodwill).

This misrepresentation does not have to be deliberate - inadvertent misrepresentation is equally liable.

Proving goodwill
Goodwill is described as the "Attractive force" that brings in trade. Most of the time its existence is not in doubt.

However, proving goodwill can prove difficult to new or overseas businesses. Hotel Cipriani Srl v Cipriani (Grosvenor Street) ltd examined the second case and determined that is is possible for an overseas business to have goodwill within the UK, and for it to exist it must be shown that the business has customers from the UK, and that they must be able to book its services (or purchase its goods) to have goodwill.

Goodwill can continue after the end of trade. In Sutherland v V2 Music Ltd (2002) a modestly popular pop group called "Liberty" was found to have goodwill in its name after they had ceased performing together through a continuing, if small, following.

Descriptive terms
A descriptive term in itself is not protectable. In Cellular Clothing Co., Limited v Maxton & Murray (1899) the "cellular" cloth that the persuer sold was not protectable as the term was held to merely be descriptive. This was also the case in Salon Services (Hairdressing Supplies) Ltd v Direct Salon Services Ltd (1988).

However, where there is a question of quality, this can still bring arise to a case. In Diageo North America Inc v Intercontinental Brands (ICB) Ltd (2011), the court examined whether Vodkat, with its lower alcohol content, was passing itself off as vodka; the court agreed it was passing itself off as the term "Vodka" had a specific meaning.

Determining confusion
The test, as determined in Stringfellow v McCain Foods (GB) Ltd (1984) is the "Moron in a hurry" test.

In Reckitt and Coleman Products Ltd v Borden Inc (1990) it was said the goods themselves should not just be compared side by side... That another company had started selling its juice in a lemon, similar to Coleman's was enough to show confusion.

Perhaps the most notable case is in John Haig & Co v Forth Blending (1954). Forth Blending had started supplying whiskey in a similar bottle to Haig's "Dimple Scots". Whilst the top of the bottle was different enough to prevent confusion in a direct retail setting, in a bar setting the two bottles could be - and were proven to be - confused.