Journal Article

Is there still a hole in this bucket? Confusion and misrepresentation in passing off

Susie Middlemiss and Steven Warner

in Journal of Intellectual Property Law & Practice

Volume 1, issue 2, pages 131-142
Published in print January 2006 | ISSN: 1747-1532
Published online January 2006 | e-ISSN: 1747-1540 | DOI:
Is there still a hole in this bucket? Confusion and misrepresentation in passing off

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  • Arbitration
  • Intellectual Property Law


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Legal context. Passing off is an evolving tort. There may be opportunities to expand the scope of the tort to capture activities that have not previously amounted to passing off.

Key points. In Arsenal v Reed, Aldous LJ suggested that the time has come to abandon the label “passing off” and recognise a tort of “unfair competition”. The implication is that certain activities that would not previously have been censured by the courts might now constitute passing off. This raises the question of what circumstances might justify giving claimants greater rights of action. This article explores the possibility of justifying a claim in passing off where the misrepresentation does not cause confusion, and dilution of the claimant's trade mark is the only damage caused.

Practical significance. There is no doubt that passing off will evolve still further. The English judiciary is perhaps now more conscious of the flexibility of passing off than at any time in the recent past. Ambitious – even adventurous – claims may have a chance of success.

Journal Article.  9850 words. 

Subjects: Arbitration ; Intellectual Property Law

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