In the absence of a registered trade mark or design, it may be possible to protect the appearance of a commercial brand from copying by bringing a claim for ‘Passing Off’.
Passing Off protects the unique identifiers of a business, including a colour scheme, the website appearance and graphics or a name and logo.
As the name suggests, an action for Passing Off exists where there is goodwill in Party A’s brand and Party B seeks to pass themselves/their goods/services off as those of Party A, or gives the impression that they are connected to Party A in some way. This deliberate misrepresentation will invariably cause damage to Party A’s reputation and goodwill.
The remedies available against a party guilty of Passing Off include damages, an injunction, the take-down of online content and surrender/destruction of offending materials.
How Cripps Pemberton Greenish can help:
- advise on legal strategy including a review of the facts and the potential for a claim for Passing Off;
- engage with the competitor, drafting and sending cease and desist correspondence;
- advise on any response received to initial correspondence; and
- advise on whether alternative dispute Resolution (ADR) may be beneficial and if so, an appropriate ADR strategy.