Passing Off vs Trademark Infringement

This logo belonging to Bass & Co was the first trademark registered in the UK. That was on 1 January 1876. The mark is still in use today (now owned by AB InBev).

Well before the modern framework of trademark registration was developed, businesses were protected through the common law tort of passing off.

Passing off is still relevant today and is often argued in conjunction with trademark infringement during litigation proceedings. Trademark infringement is the term used when a registered trademark is used without the owner’s permission.

Long ago courts recognized that a trader should not misrepresent their goods as someone else’s. That’s why the tort of passing off was developed by the courts so traders could take action if their customers were deceived by rogues.

If someone copied your brand name, packaging, or trade dress and confused your customers, you could sue.

However, you had to be able to prove that you had a reputation and that consumers were deceived. This was difficult and expensive to prove to the level required by the law. 

Businesses protected themselves by using distinctive names, logos, and packaging. They also focused on building long-standing goodwill, so customers recognized their products.

Bass & Co’s iconic red triangle logo was already widely recognized even before formal registration of the mark. 

However, registration changed everything because rights became certain, affordable to enforce, and were not limited geographically in the way the law of passing off tended to limit them.

With trademark infringement there was no longer a need to prove that you had a reputation.

While the law of passing off is still highly relevant in certain litigation cases today, smaller businesses now have a much more affordable way to tackle copycats. Rather than having to rely on passing off laws to enforce their rights they can rely on their trademark registration to establish that their rights have been infringed.

So, it’s important to register a trademark in today’s business environment because otherwise you just have the law of passing off to fall back on if bad actors misuse your brand.

Be sure to properly register your brand name and other elements so you are well placed to enforce your rights even if your budget is limited. Without a registration you are reliant on the law of passing off to fight copycats, and that’s hugely expensive.