What is Passing Off?
Even if you are called Harold a launching your business called ‘Harolds’ using the same font and the gold and green colouration as ‘Harrods’ the luxury department store is not going to work too well.
Passing off is where a business sells goods or services under the pretence that they are the those of another. The law of passing off protects the reputation and goodwill of a business.
So twenty four years after Other Creative had been providing creative consultancy services in the UK under the sign OTHER, they were understandably disgruntled when Mother Family launched an independent creative agency under the name OTHER and promoted its services from its website and social media accounts in the UK. Other Creative alleged that Mother Family’s use of the sign OTHER amounted to an passing off and issued a claim in the High Court. Ten months later after some legal tooing and froing, without admitting liability, Mother Family offered a contractual undertaking not to use the sign OTHER and rebranded.
Goodwill is the brand reputation which is built-up in relation to specific goods or services and attracts customers. It can be held by an individual, a business or in some cases shared, such as between all the producers of a specific product in a specific areas.
Spanish sherry makers, French champagne houses and Parma ham producers have each won passing off cases which prevent people from outside the relevant areas and/or not using traditional techniques using terms such as “sherry”, “methode champenoise” and “prosciutto di Parma”.
Passing off claims can sometimes be difficult to assert because it is important to be able to demonstrate that at least some of the public are at risk of confusion between the two businesses.
Harrods did get Harold to change the company name and logo
Do your research first before launching a brand or company sometimes the expense of changing is not worth it
Be careful who you are passing off!