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Tort of Passing-Off - PPTX 3

school slides on tort of passing off (business law)

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13 views

Tort of Passing-Off - PPTX 3

school slides on tort of passing off (business law)

Uploaded by

ozobokemeoyintare
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
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Tort of passing-off

•Passing-off is a cause of action that is primarily founded in tort and


historically rooted in common law.

•Passing-off enables a business to take legal action against someone


who creates the impression that their goods or services are
provided by you.

•The main purpose of the tort of passing-off is for the protection of


the established trade goodwill already acquired by trade marks or
trade name.

•The extant trade mark legislation in Nigeria is the Trade Mark Act
Laws of the Federation of Nigeria 2004 (Trade Mark Act 2004).
Tort of passing-off
• S.251(1)(f) of CFRN 1999 (as amended) gives exclusive jurisdiction to
the Federal High Court to handle issues relating to trade marks and
passing-off .

• To be successful in a passing-off action, your business must establish


the three basic elements which include:

- (i) goodwill

- (ii) misrepresentation; and

- (iii) damage.

• Goodwill- under this element, you must show that your goodwill is
attached to the goods or services.

• The goodwill of your business is the value of its reputation over and
above the value of its assets. The benefit and advantage of good
name, the reputation and connection of your business. See IRC v
Margarine (1901) AC 217, 223.
Tort of passing-off

•Misrepresentation- there must be a misrepresentation by the


defendant in the course of business that leads to or likely leads
the public to believe that the goods or services offered by the
defendant are goods or services provided by the claimant’s
business.

• Damage - claimant must establish that he has suffered or likely


to suffer business loss from the misrepresentation of the
defendant.

-e.g loss of profit, damage to reputation or loss of an opportunity


to expand.
Tort of passing-off
• The acts of infringement that may be actionable in ‘passing-off’ include
the misuse of trade names, trade marks, or the design ‘get up’ in goods
or business in question. E.g in the case of Niger Chemist Limited v
Nigerian Chemists, (1961) ANLR 180, the plaintiff sold drugs at
Onitsha, Eastern Nigeria and the defendant opened shop on the same
street and commenced the same kind of business of dispensing drug.
On being sued, the court granted an injunction against the defendant
on the basis that their use of the name -Nigerian Chemists- was
intended to deceive the general public to believe that they had a
relationship of some sort with ‘Niger Chemist’.

• In members of Intellectual Property Law Association of Nigeria v The


Registered Trustees of Intellectual Property Lawyers Association of
Nigeria (2018), the court held that unregistered association using
unregistered trade name cannot sue for passing-off against a duly
registered association.

• An unregistered association lacks the legal capacity to sue a registered


association for name similarity. See CAMA 2020, ss.31 (1) (a-b).
Tort of passing-off
• Once an infringement has been alleged by a party, all the
ingredients of passing-off already identified above are to be
construed conjunctively and not otherwise.

• All the element of tort enunciated previously must be there giving


rise to infringement of passing-off. Where the alleged act of
infringement is calculated to deceive the public mere possibility of
the potential to deceive the public can ground an action.

-e.g. see Ewing v Buttercup (1972) 2 Ch 1.

• Neither intention nor mental state is required to prove an action in


passing-off. It is immaterial whether the false representation was
made expressly or impliedly. What is required is the element of
misrepresentation with potential to deceive an intending
consumers.

-e.g. see Trebor Nig Ltd v Associate Ind Ltd (1972)NNLR 60.

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