Passing off and The Classic Trinity

Passing off is a type of unfair competition claim made by holders of unregistered trademarks to stop or prevent others from copying the mark, packaging or 'get-up' (brand name, trade description, individual features of labelling or packaging) and presenting the copied goods and services as if it were theirs. (Reverse passing off is where a third party without authorisation takes your goods and presents them as theirs.)
To establish this right of action, the claimant must show three elements sometimes referred to as the 'classic trinity' first enunciated in the House of Lords decision of Reckitt & Colman Products Ltd. v Borden Inc. [1990] 1 WLR 491. (This case is better known as the Jif Lemon case.) The three elements are:-

• The goods or services have acquired goodwill or reputation in the marketplace that distinguishes such goods or services from competitors;
• The defendant misrepresents his goods or services, either intentionally or unintentionally, so that the public may have the impression that the offered goods or services are those of the claimant; and
• The claimant may suffer damages because of the misrepresentation.