Passing Off

HMRC's Capital Gains Manual sets out the classic three-part test for passing off, describing how the House of Lords “identified three elements that a claimant must establish in order to succeed in a case of passing off”: first, “a goodwill or reputation attached to the goods or services which the claimant supplies by association with their name, trade description or packaging”; second, “a misrepresentation by the defendant to the public, which does not have to be intentional, so that the public are likely to believe that goods or services provided by the defendant are in fact goods or services provided by the claimant”; and third, that “the claimant has suffered, or is likely to suffer, damage as a result of the misrepresentation.” This is often summarised as the classical trinity of reputation, misrepresentation and damage.

That formulation traces to “Lord Oliver of Aylmerton in the House of Lords ([1990] 1 WLR 491)” — the same report citation given for Reckitt & Colman v Borden. Because passing off protects only the goodwill a claimant has built up in its reputation, HMRC's guidance notes it has since been used in cases well beyond product get-up, including false-endorsement claims by public figures (such as the Eddie Irvine and Rihanna cases) where a defendant's conduct falsely suggested an association with the claimant.