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Intellectual Property Law

Intellectual Property Law (5th edn)

Lionel Bently, Brad Sherman, Dev Gangjee, and Phillip Johnson
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date: 25 September 2022

p. 86532. Passing offlocked

p. 86532. Passing offlocked

  • L. Bently, L. BentlyHerchel Smith Professor of Intellectual Property, University of Cambridge
  • B. Sherman, B. ShermanProfessor of Law, University of Queensland
  • D. GangjeeD. GangjeeAssociate Professor of Intellectual Property Law, University of Oxford
  •  and P. JohnsonP. JohnsonProfessor of Commercial Law, Cardiff University

Abstract

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.

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