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Registered Trademark Protection and Passing Off - Research Paper Example

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This paper, Registered Trademark Protection and Passing Off, will demonstrate the significance of the tort of passing off since the introduction of the registered trademark system. The first part of this paper is committed to the definition and nature of the tort of passing off.  …
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Registered Trademark Protection and Passing Off
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Download file to see previous pages Passing off is a common law concept created by judges. Lord Parker’s definition of passing off in Spalding v Gammage sets out the general significance of an action for passing off. Lord Parker defined passing off as a prohibition against the representation of one’s goods as those of another.
A more detailed definition of passing off is provided in the Advocaat case in which Lord Diplock’s definition encapsulates the essential elements of passing off. In this regard, passing off is required to be made by virtue of a misrepresentation. This misrepresentation must be made by a business trader operating in the course of his business dealings. The misrepresentation must also be made to consumers with respect to the goods and services provided by the trader. The misrepresentation must be such that it is designed to bring about harm to the goodwill or the business of a comparative business. The misrepresentation must bring about actual damages to the goodwill of a business or must be likely to bring about damages.
 Passing off seeks to protect a proprietary entitlement in goodwill.  At its core, passing off seeks to protect the use of a reputation attached to a trade mark so as to prevent confusion in the market place. Each of the elements contained in the classic trinity culminates in a general proposition that takes the protection accorded the tort of passing off beyond the protection provided for under the infringement of a registered trademark.  ...Download file to see next pages Read More
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