The Lowdown on Passing Off

The Lowdown on Passing Off

In a time when brands, images and ideas are constantly grabbing our attention, it’s easy to be inspired by others. But there’s a difference between inspiration and blatantly using another’s brand or business for your advantage. That’s not the go, yo. 

Let’s dive in further. 

Passing off occurs when someone has misrepresented another’s goods or services as their own. If you think this nasty business has happened to you, you can legally make a claim to protect your business. Keep in mind this is a different approach to a Consumer Law claim than Misleading and Deceptive Conduct.  

Think of it this way  — your Smell Good Candle Co’s tropical scents and brand colours are hugely popular. A business has clocked their success and designs their brand in a similar look, feel and form of distribution, so much so that some buyers might think they’re your Smell Good Candle Co candles. How dare they! 

If you think this has happened to you, you can seek help under the common law tort of passing off. No, you can’t eat a tort. A tort is a legal wrong and common law is a term used to describe “unwritten laws” that are based on cases fought over in court. 

What you need to prove to win your case: 


This is that magical, intangible ingredient that makes your offering undeniably yours. It could be a distinctive candle scent or design on your candles that make the public immediately think of your brand, or it can be your reputation and how well-known your tropical candle design is. 


A misrepresentation is when the business’ behaviour has misled or deceived the public into thinking that their goods or services are the same as yours, whether done intentionally or unintentionally. It also has to occur over the course of business (not once during a sale or promotion). It also only needs to be likely to mislead or deceive. 


If you’re seeking damages for passing off, you have to show that you have suffered, or are likely to suffer, damages in some way. It could be a negatively impacted reputation (their candles stink and are making yours look… smell… bad!), loss of sales or potential sales or lost opportunities for collaborations or sponsorships. 

The truth of the matter is, if you’ve registered your trade mark you’re already one step ahead and you likely won’t have to worry about deep diving into the tort (not tart) of passing off as part of the Australian Consumer Law. But if you’ve been caught trademarkless, it may be time to pursue your claim. Just make sure you’re able to establish your goodwill, misrepresentation and damages or you may find yourself up a tropical creek without a paddle... candle.  


It was a stretch. But you get what we’re saying. If you need more support, we’re here for you. 

Need help? Don't hesitate to reach out for additional support.  




***Disclaimer. Please read!!***  


This article is for general information purposes only and should be used solely as general guidance. It does not and is not intended to represent legal advice or other professional advice. 


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