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.
Character merchandising does not have much in the way of specific recognition in UK law. In response, the character merchandising industry has sought legal protection via the adaptation of other intellectual property rights and their application to the merchandising field. This chapter discusses how copyright, trade mark law, and various torts combine to confer legal protection on character merchandising.
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)