●    Passing-off is a common law cause of action, which protects traders against misrepresentations made by their competitors that confuse customers as to the source of goods and services. The typical passing-off scenario is where a first trader, by the use of a brand name, logo, slogan, or packaging, deceives customers into thinking that their products or services are associated with a second trader. If the second trader can prove that, and also prove loss, then they have a cause of action in passing-off. It must be proved that customer confusion has occurred, and this can be difficult.

●    Registered trade marks provide traders with the opportunity to gain protection for their brand names and other brand identifiers, such as logos, packaging details, and slogans, by registering them as trade marks.

●    While there are strict requirements for what can be registered as a trade mark, if a trader is able to register a mark, they will achieve better protection than from passing-off, as any use by another trader of the mark on the goods for which it is registered will infringe the trade mark and can be stopped.

●    For this reason, traders should register trade marks wherever they can, rather than relying on passing-off to protect their brand identity.