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Chapter

Cover Intellectual Property Law

33. Misrepresentation  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter considers one element of the action of passing off with respect to trade marks: the requirement that there be a misrepresentation. It first describes the type of conduct that amounts to misrepresentation and the consequences that flow from that conduct, as well as the types of suggestion that are actionable. It then discusses the requirement that a statement must be likely to cause confusion in order to qualify as a misrepresentation. In addition, the chapter explains how passing off action can be brought not only against a person who carries out the misrepresentation, but also against anyone who provides the means for the misrepresentation to occur (such as by providing instruments of deception).

Chapter

Cover Intellectual Property Law

34. Damage  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter examines one element that a claimant must prove to sustain a passing off action: the requirement that they have suffered, or are likely to suffer, damage as a result of the defendant’s misrepresentation. It first considers four types of damage that have been recognized by the courts in connection with misrepresentation: loss of existing trade and profits; loss of potential trade and profits; damage to reputation; and dilution. It then discusses the notion of extended passing off and its three elements: goodwill, misrepresentation, and damage. It also looks at the principles of unfair competition.

Chapter

Cover Contemporary Intellectual Property

16. Passing off  

This chapter examines the action of passing off, that is, the means by which one trader may prevent another from misleading customers by misrepresenting (or ‘passing off’) goods or services as emanating from the former party. It analyses the key elements of goodwill, misrepresentation, and damage, as well as considering extended passing off by reference to multiple examples of groups of producers seeking to protect the goodwill associated with their products. It concludes with discussion of key issues regarding the future of passing off, in particular in relation to the internet and its possible development as a law against unfair competition.

Chapter

Cover Street on Torts

14. False representations  

This chapter examines the protection provided by tort law against false representations which cause the claimant to suffer some kind of financial loss (which is why they frequently are seen as falling within the category of economic torts). The chapter discusses the principal elements of three different types of false representation case, these being: deceit (based on an inducement by the defendant that the claimant rely on the statement even though the defendant was at least reckless as to its truth), passing off (based on deception of the claimant’s customers), and malicious falsehood (usually based on disparagement of the claimant’s goods).

Chapter

Cover Contemporary Intellectual Property

16. Passing off  

This chapter examines the action of passing off, ie the means by which one trader may prevent another from misleading customers by representing (or ‘passing off’) goods or services as emanating from the former party. It analyses the leading judicial definitions of passing off, from which emerge the key elements of goodwill, misrepresentation, and damage, as well as considering extended passing off by reference to multiple examples of groups of producers seeking to protect the goodwill associated with their products. It concludes with discussion of key issues regarding the future of passing off, in particular in relation to the internet and its possible development as a law against unfair competition.

Chapter

Cover Introduction to Business Law

19. Intellectual Property Law  

This chapter considers the major intellectual property rights in the UK and the protection the law gives to these rights. It explains the meaning of copyright, patents, trade marks, and design rights, and considers the types of works that might be protected by them. It explains whether the rights need to be registered and if so the process of registration. It examines the time limits for the protection of the various rights and the remedies available for infringement of them. It also considers the protection the law gives to intellectual property via the tort of passing off. The chapter concludes with a discussion of the possibilities of protecting intellectual property rights outside the UK.

Chapter

Cover Intellectual Property Law

8. Passing off  

This chapter explores the tort of passing off which protects the goodwill of a trader from misrepresentation. In the United Kingdom, there is no obligation to register a trade mark. Protection has always been available at common law for marks in use, by means of the action for passing off. There are three elements of passing off. First a trader must establish that the trader has a goodwill or reputation attached to the goods or services which the trader supplies. Second, the trader must demonstrate that the defendant has made a misrepresentation leading or likely to lead the public to believe that the goods or services offered by the defendant are the goods or services of the claimant. Lastly, the trader must demonstrate that the trader has suffered or is likely to suffer damage by reason of the erroneous belief caused by the defendant's misrepresentation. These three elements are interdependent.

Chapter

Cover An Introduction to Tort Law

13. Economic Torts  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter deals with economic torts. Economic torts include deceit, malicious falsehood, passing-off, inducing breach of contract, intimidation, and conspiracy. The first three involve deception: deceit is telling lies to the claimant; telling lies to a third party is malicious falsehood; misleading a competitor's customers, even bona fide, is passing-off. The other three torts all involve collaboration, whether reluctant, as a result of threats, complaisant as a result of positive incentives, or spontaneous. The chapter discusses the nature of the harm; the defendant's conduct and purpose, anti-competitive conduct; and the various ‘economic torts’ in terms of their various components: intention, conduct, and wrongfulness.

Chapter

Cover Markesinis & Deakin's Tort Law

21. Defamation and Injurious Falsehood  

Defamation, a tort that protects a claimant’s reputation, has been the subject of much debate in recent years, culminating in the passing of the Defamation Act in 2013. A tort of historic origin, defamation raises novel challenges in an age of internet and digital communication technology, particularly given increasing concerns about freedom of expression, and the protection of privacy. Like many aspects of the law discussed in this book, moreover, defamation has not been left untouched by human rights developments. The chapter begins with an introduction to defamation, covering the meaning of ‘defamatory’ and libel and slander. It then discusses elements of liability, both in the common law, and under the Defamation Act 2013; defences; damages; mitigation of damage; and injurious falsehoods and passing off.

Chapter

Cover Business Law

24. Intellectual Property and Data Protection  

The final chapter in the book examines matters relating to the intellectual property created and/or owned by a business and their responsibilities for the data they access and/or produce. Given the value of the outputs from the intellectual creativity of persons (software programs, books, music recordings etc.), this chapter outlines the rights available to protect them and the consequences for infringement. It first identifies the law surrounding creative ideas and work (copyright) before a product’s appearance (design rights) is considered. The chapter continues by assessing the protection of a brand name and image (trademarks) and finishes the substantive issues through examination of inventive ideas and works (patents). Confusion of the public through the unlawful use of an existing business’ name or product can result in the tortious liability of ‘passing-off’. Intellectual property is produced by employees and the consequences of employment status for the rights to exploit the property must be effectively managed. The chapter concludes with an assessment of developments in data protection—the GDPR, Data Protection Act, and the tactics available to businesses to avoid transgression of the law.

Chapter

Cover Holyoak and Torremans Intellectual Property Law

28. Tortious protection of intellectual property rights  

This chapter discusses the ways in which the common law, in the form of the law of tort, creates rights of action. It focuses on the torts of passing off and malicious falsehood, although attention is also paid to the ways in which defamation can assist. These rights are supplementary, and complementary, to the statutory formal rights. In particular, trade mark law and passing off closely overlap, although s. 2(2) of the Trade Marks Act 1994 preserves passing off as a separate cause of action.

Chapter

Cover Intellectual Property Concentrate

9. Passing-off and trade marks  

Passing-off is a common law cause of action that protects traders with goodwill in their business against misrepresentations made by their competitors which confuse customers as to the source of goods or services. The typical passing-off scenario is where a trader, by the use of a brand name, logo, slogan, or packaging, deceives customers into thinking that its products or services are associated with another trader. Trade marks can be registered for signs or symbols that identify products or services as coming from a particular trader, so to be registrable a trade mark must be distinctive of a trader’s goods and not similar to any earlier registered mark, or a non-registered mark that is in use. Registration of a trade mark gives substantial advantages over relying on passing-off. The law of registered trade marks has been harmonized by the European Union.

Chapter

Cover Intellectual Property Law

31. Introduction to Passing Off and Trade Marks  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter introduces the common law of passing off and the statutory regime that protects registered trade marks found in the Trade Marks Act 1994. It commences with a brief history of trade marks and the development of their legal protection. This is followed by a discussion of the ways in which legal protection of signs and symbols are justified. It then considers the international and regional background that informs and constrains the law on trade marks in the UK, with particular reference to registration and the harmonization of standards. The chapter concludes by looking at challenges posed to trade marks by electronic commerce and the use of trade marks as domain names, as well as recent developments in artificial intelligence which will impact this field.

Chapter

Cover Intellectual Property Law

32. Passing Off  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter focuses on the tort of passing off as a legal regime for the protection of trade marks. It considers three elements that are required in order to succeed in an action for passing off: the claimant has ‘goodwill’; the defendant made a ‘misrepresentation’ that is likely to deceive the public; and the misrepresentation damages the goodwill of the claimant. It also surveys the law in relation to goodwill. This chapter discusses manifestations of goodwill and describes goodwill associated with packaging, get-up, and trade dress as well as advertising style. It concludes by analysing the scope and ownership of goodwill, together with goodwill as a form of property.

Chapter

Cover Contemporary Intellectual Property

18. Privacy and control of information  

This chapter considers the extent to which individuals can and should be able to prevent others referring to them and their activities and, conversely, the extent to which individuals and companies should be able to commercialise and control a reputation that they have built up. The discussions cover the evolving right to personal privacy (through the tort of misuse of private information) and its base in human rights, particularly in respect of photographs; obtaining and dealing with trade marks in respect of well-known personalities; the relationship between passing off and endorsement and merchandising; and the extent to which individuals and businesses can and do control the use of their image through endorsement and sponsorship. The chapter also considers data protection in this context, as well as the balancing of privacy and freedom of expression.

Chapter

Cover Contemporary Intellectual Property

18. Control of information, reputation, and intellectual property  

This chapter considers the extent to which individuals can and should be able to prevent others referring to them and their activities and, conversely, the extent to which individuals and companies should be able to commercialise and control a reputation that they have built up. The discussions cover the evolving right to personal privacy (through the tort of misuse of private information) and its base in human rights, particularly in respect of photographs; obtaining and dealing with trade marks in respect of well-known personalities; the relationship between passing off and endorsement and merchandising; and the extent to which individuals and businesses can and do control the use of their image through endorsement and sponsorship. The chapter also considers data protection, as well as the balancing of privacy and freedom of expression.

Book

Cover Intellectual Property Law
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. Intellectual Property Law: Text, Cases, and Materials provides a complete resource for undergraduate and postgraduate students of intellectual property (IP) law. The only text of its kind in the field, it combines extracts from major cases and secondary materials with critical commentary from experienced teachers in the field. The book deals with all areas of IP law in the UK: copyright, trade marks and passing off, personality and publicity rights, character merchandising, confidential information and privacy, industrial designs and patents. It also tackles topical areas, such as the application of IP law to new technologies, such as artificial intelligence, and the impact of the internet on trade marks, copyright, and privacy. While the focus of the book is on IP law in a domestic context, it provides international, EU, and comparative law perspectives on major issues, and also addresses the wider policy implications of legislative and judicial developments in the area. The book is an ideal resource for all students of IP law who need cases, materials, and commentary in a single volume.

Chapter

Cover Intellectual Property Law

10. Privacy, Personality, and Publicity  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter examines the protection of privacy, personality, and publicity interests. It considers: the law of privacy and the extent to which individuals can control the use or disclosure of their personal and private information; character and personality merchandising and the ways in which the law of registered and unregistered trade marks protects these interests; and the controversial question of whether individuals can and should be able to prevent the commercial exploitation of their personality and image through a separate publicity right.

Book

Cover Intellectual Property Law

Stavroula Karapapa and Luke McDonagh

Intellectual Property Law aims to provide a comprehensive text on all aspects of this field. The first part looks at the complexities of copyright law, from authorship and first ownership to infringements and defences. It also covers moral and related rights. The second part looks exclusively at passing off. Then the text turns to trade marks. It examines the absolute grounds for refusal and the relative grounds for refusal of registration. It looks in detail at infringement and loss of registration of trade marks, and this part of the book ends with an examination of defences to trade mark infringement. The next part is about patents. After an introduction to patents the text analyses ownership and infringement of patents. The text then moves on to confidential information, in other words, trade secrets. Designs are examined after this. The final few chapters are about the exploitation and enforcement of intellectual property. The text concludes.

Chapter

Cover Intellectual Property Law

5. Passing Off  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses the protection which the law affords to unregistered trade marks through the tort of passing off. It covers the definition of passing off; the relationship between passing off and unfair competition; the elements of both the classic and the extended form of passing off; the role of customer confusion in passing off and types of confusion, including initial interest confusion as well as reverse passing off; the types of damage resulting for an actionable misrepresentation; and defences to passing off (delay or acquiescence, bona fide use of the defendant’s own name, and concurrent use)