Frequently Asked Questions

Q: What is passing off?

The tort of passing off applies where there is a representation that a person’s goods or services are those of someone else.  To establish passing off, the plaintiff must prove a misrepresentation made by a trader in the course of trade to prospective customers or consumers that is intended to injure the plaintiff's business or goodwill and that caused actual damage to the plaintiff.  The misrepresentation can be about the name of the product or the image that is presented by the product.  The tort of passing off is not confined to the traditional concepts of trade names and trademarks.  It includes such things as slogans and visual images where they have become part of the goodwill or reputation of the product.

The Trade Practices Act creates a statutory tort that can be used in addition to, or in substitution for, the common law tort of passing off.  The Act prohibits deceptive or misleading conduct by a corporation.  It is only necessary to prove that the conduct occurred in the course of trade and commerce, and that it is misleading or deceptive, or likely to mislead or deceive.


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