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The registered trade mark system allows applicants to register a mark and thereby obtain protection.

This is a remedy which prevents a trader from passing off his or her own goods or services as the goods or services of another. Essentially, it thwarts traders who make misrepresentations that damage the ‘goodwill’ or reputation of the plaintiff in a way which is likely to cause confusion, material loss or other forms of damage.

There is no statutory basis for passing off. Rather, it is a tort, or common law remedy, developed on an ad hoc basis by courts keen to prevent unworthy wrongdoers from escaping liability. It is irrelevant that the defendant may not have intended to pass off his goods or services as those of another. Neither fraud nor negligence is a pre-requisite of an action.

Pactum Law offers advice to both prospective plaintiffs and defendants as to the strength of a claim of passing off, as well as the remedies associated therewith and the viability of alternative dispute resolution.

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