Passing off

It was settled law that the necessary elements of the action for passing off were: (i) that the plaintiffs goods or services had acquired a goodwill or reputation in the market and were known by some distinguishing feature; (ii) that there was a misrepresentation by the defendant (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by the defendant were goods or services of the plaintiff; and (iii) that the plaintiff had suffered or was likely to suffer damage as a result of the erroneous belief engendered by the defendant’s misrepresentation. It was possible for relatively small trade to result in sufficient goodwill for a passing off case so long as it was more than trivial. The law of passing off required that a substantial number of members of the relevant public were likely to be deceived by the use complained of. The issue of confusion or misrepresentation had to be