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Tuesday, December 6, 2022

Passing off


Funmilayo Olagunju Esq.

Pretending that the goods and services offered are those supplied by another business is passing off.

It is an unfair competition by misrepresentation in course of trade which could lead to confusion among customers.

In lay parlance, passing off is the impersonation of another business.

It applies to both e commerce and physical business.

Passing off is not a crime but it is actionable in Tort under the Law of unfair competition.

Passing off is an action on unregistered marks while Trade Mark infringement involves a fully registered trademark.

“No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark; but nothing in this Act shall be taken to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof”

Section 3 Trademarks Act

Passing off might border on strong similarity in product packaging as in the case of Trebor Nigeria Limited v. Associated Industries Limited.

Another famous source of contention is name. In Niger Chemist Limited v. Nigeria Chemist, the plaintiff had an established chemist business using the name “Niger Chemist” while the defendant in the same line of business on the same street with the plaintiff was using the name “Nigeria Chemist”.

The plaintiff sued the Defendant claiming the name was too similar and likely to deceive the public that there was a relationship between them.

The Court granted an injunction restraining the Defendant from using that name.

It is not every competitive act that is actionable as passing off. Fair competition is legal.

In the case of The Boots Company Limited v. United Niger Imports, the Court listed the ingredients of passing off.

  1. Proof that the name, mark, sign which the plaintiff claims ownership has become distinctive of his goods and is regarded by a substantial number of the public or persons involved in a trade in the relevant market as coming from a particular source;
  2. That the Defendants who are engaged in a common field have used a name, mark, sign so resembling to the plaintiff’s that it is likely or calculated to deceive or cause confusion in the minds of the common customer; and
  3. That the use of the name, mark, sign is likely to cause or has caused injury, actual or probable to the goodwill of the plaintiff’s business.

Name, mark or symbol are part of the goodwill of a business. It should be protected Legally and socially.

The burden of proving ownership of same is on the plaintiff.

“a good name is more desirable than great riches; to be esteemed is better than silver or gold”

Proverbs 22:1

                                                                To be continued…


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