Trademark cases in which an act of passing off has occurred can generally be identified in reference to the common elements, referred to under English law as the classic trinity These comprise the reputation of the defendant for delivering a particular kind of good or service, an act of misrepresentation by the plaintiff, and the exacting of some degree of damages to the defendant’s reputation in business as a result of the misrepresentation.
The kinds of instances of trademark complaints which come under the heading of passing off law may include the extended form of passing off, one known form of which comprises the so-called personality rights of celebrities. There is also the concept of reverse passing off, in which the reverse in question is that of the common stipulation that passing off occurred through the defendant misrepresenting her or his products as those of the plaintiff.
In cases of extended passing off law, damage can be shown to have actually occurred to the business fortunes of the aggrieved party. Such a detrimental effect to an individual’s level of business fortune occurs through the loss of “goodwill,” the term generally used under law, which is claimed to have been enjoyed by the plaintiff. Extended passing off law is often associated with personality rights, a legal tool for celebrities to defend the use of their name and reputation for licensing and other commercial purposes.
The usefulness of putting passing off law to the purpose of protecting personality rights, is that it refers to the implied or stated misrepresentation that the celebrity has endorsed the use of his or her image or name by the defendant, as opposed to a mere claim that the use of the image or name was simply unauthorized.
Reverse passing off is held by authorities on passing off law to be less common than the other forms. It occurs when the defendant identifies himself or herself as being the source for a good or service created by the plaintiff. Such passing off cases often occur in the instance of vendors selling another group or individual’s goods, and representing themselves as having also been the creators. There are two different degrees of severity which may be found in cases of reverse passing off.
The less severe instance occurs when the defendant is accused of taking off the means through which a product is traced back to its source. Express reverse passing off occurs when the defendant takes off the mark on a product, and then puts on one identified with him or her, which is considered an aggravating factor.
Ambiguity has been found to exist when the defendant has purchased the goods or services in question from the plaintiff. In this case, the defendant might claim to have entitlement to alter the advertising marks used on the product, especially if that purchase is found to have been the primary purpose for the trademarks.
