Book contents
- Frontmatter
- Contents
- Preface
- Acknowledgements
- Table of statutes
- Table of cases
- 1 Introduction
- 2 Passing off
- 3 Registered trade marks
- 4 Exploitation of registered trade marks
- 5 Copyright: Introduction
- 6 Subsistence of copyright
- 7 Authorship and first ownership, nature of the rights and duration
- 8 Exploitation, infringement and defences
- 9 Moral rights, performers' rights and circuit layouts
- 10 Designs
- 11 Equitable doctrine of breach of confidence
- 12 Patents for inventions: introduction
- 13 Patents for inventions: validity
- 14 Patents for inventions: allocation of rights and ownership, the Register and dealings
- 15 Patents for inventions: exploitation, infringement and revocation
- 16 Plant breeder's rights
- 17 Remedies and miscellaneous issues
- Appendix
- Index
2 - Passing off
- Frontmatter
- Contents
- Preface
- Acknowledgements
- Table of statutes
- Table of cases
- 1 Introduction
- 2 Passing off
- 3 Registered trade marks
- 4 Exploitation of registered trade marks
- 5 Copyright: Introduction
- 6 Subsistence of copyright
- 7 Authorship and first ownership, nature of the rights and duration
- 8 Exploitation, infringement and defences
- 9 Moral rights, performers' rights and circuit layouts
- 10 Designs
- 11 Equitable doctrine of breach of confidence
- 12 Patents for inventions: introduction
- 13 Patents for inventions: validity
- 14 Patents for inventions: allocation of rights and ownership, the Register and dealings
- 15 Patents for inventions: exploitation, infringement and revocation
- 16 Plant breeder's rights
- 17 Remedies and miscellaneous issues
- Appendix
- Index
Summary
History of passing off
A typical passing off situation is one in which the defendant represents that its product originates from or is in some way associated with the plaintiff or the plaintiff's business when that is not the case. It may do this by adopting some business indicia of the plaintiff such as an identical or similar business name or sign associated with the plaintiff's product; but, as we will see, there are many different scenarios that fit that general description of passing off and the tort has also developed well beyond that basic proposition. We will also see that the understanding of the tort is complicated by its historical evolution. Its complicated history relates to the fact that the tort was recognised by both common law courts and courts of equity but they exhibited considerable differences in both their approach to the theoretical underpinnings of the tort and their approach to remedies for passing off. These historical differences continue to inform and complicate the development and application of the tort. An understanding of that history is essential to understanding the present day formulation of passing off. It is also essential to understanding the various functions of registered trade marks, a statutory system of intellectual property that evolved from the tort of passing off.
Common law and passing off
Common law courts perceived passing off as a form of fraud and placed greater emphasis on the ‘fraud’ aspect of passing off. They were therefore concerned with representations by traders that deceived consumers about the trade origin of goods.
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- Australian Intellectual Property Law , pp. 20 - 63Publisher: Cambridge University PressPrint publication year: 2008