Section A

Which of the following statements regarding the tort of passing off is correct?

Answer options:

Passing off only applies to registered trademarks.

The claimant must prove goodwill, misrepresentation by the defendant, and damage to the claimant's goodwill.

The defendant must have intentionally set out to deceive the public.

Passing off is a criminal offence punishable by a fine.

How to approach this question

Recall the 'classic trinity' established in the Jif Lemon case for the tort of passing off.

Full Answer

B.The claimant must prove goodwill, misrepresentation by the defendant, and damage to the claimant's goodwill.✓ Correct

To succeed in an action for passing off, the claimant must establish the 'classic trinity' (Reckitt & Colman v Borden): 1) Goodwill or reputation attached to the goods/services; 2) A misrepresentation by the defendant to the public (intentional or not); 3) Damage suffered by the claimant as a result.

Common mistakes

Confusing passing off with registered trademark infringement or assuming intent is required.

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Practice the full ACCA LW — Corporate and Business Law Practice Exam 6

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