Instead, the law of passing off is designed to prevent misrepresentation in the course of trade to the public, for example, that there is some sort of association between the businesses of two traders.
One recent example of its application by the United Kingdom Intellectual Property Office can be found in a Trade Mark Opposition Decision in 2001.
[1] It was held that two brands of confectionery both named "Refreshers", one made by Swizzels Matlow and one by Trebor Bassett, which had coexisted since the 1930s, would deceive a consumer as to their source for some items but not for others.
In Reckitt & Colman Products Ltd v Borden Inc,[2][3] Lord Oliver reduced the five guidelines laid out by Lord Diplock in Erven Warnink v. Townend & Sons Ltd.[4] (the "Advocaat Case") to three elements: The plaintiff has the burden of proving goodwill in its goods or services, get-up of goods, brand, mark or the thing standing for itself.
It has been described as "the attractive force by that brings in custom" by Lord Macnaghten in the UK case IRC v Muller & Co.'s Margarine [1901] AC 217.
Ultimately, the court must use common sense in determining the case, based on evidence and judicial discretion, and not witnesses.
The extended form of passing off is used by celebrities as a means of enforcing their personality rights in common law jurisdictions.
Accordingly, celebrities whose images or names have been used can successfully sue if there is a representation that a product or service is being endorsed or sponsored by them or that the use of their likenesses was authorised when this is not true.
Although not expressly endorsed by the courts, reverse passing off was successfully argued by the plaintiff in Bristol Conservatories Ltd v Conservative Custom Built Ltd [1989].