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. However, unlike the tort of fraud, it was not the recipient of the fraudulent misrepresentation, the consumer, who brought the action. Instead, it was the injured trader who brought the passing off action because the trader was injured when consumers were deceived into believing that the goods being sold originated from the trader, when in fact they did not. This common law tort became far more powerful when the requirement of intention to deceive, a necessary element of the tort of fraud, was dropped well over a century ago and the nature of the misrepresentations recognised as founding the action expanded dramatically during the twentieth century.