Passing off

The common law action against someone trading off your reputation. The fallback when there is no registration.

What it means

Passing off requires goodwill in the claimant's name or get-up, a misrepresentation by the defendant, and damage.

Why it matters

It is what protects an unregistered brand — and proving goodwill and misrepresentation is far harder and more expensive than relying on a registered trade mark.

What it looks like in practice

Evidence of goodwill means trading history, marketing spend, turnover and recognition. Building that evidence after a dispute starts is difficult.

What to watch out for

Assuming a long-established unregistered name is safe. Someone else registering it as a trade mark creates a real problem even where you were first.

Where to get proper advice

An IP solicitor. And register the mark, which is cheaper than one letter of claim.