You could consider making a claim for passing off.
An action in passing off can be used to protect the “goodwill” in your business, product or service. Goodwill is the distinguishing feature that makes customers prefer your business, products or services to those of a competitor in the same market.
What do you need to show to pursue a claim for passing off?
There are three elements to a passing off claim which must be considered when deciding whether the requirements for a claim are met:
- Have your goods or services acquired goodwill in the minds of the public?
- Has there been a misrepresentation by someone which leads or is likely to lead to consumers being confused as to the origin of the goods/services?
- Has this caused you damage (e.g. have you experienced loss of sales or negative customer reviews from services which were not provided by you)?
What are your remedies for infringement?
- An injunction – an order preventing the other party from using your ‘get up’ in relation to its goods and services
- Damages – you can recover your lost profits (which can be attributed to the infringement) from the infringer; or (alternatively) an account of the other party’s profits generated as a result of their passing off.
- The delivery up or disposal of the infringing articles.
If you own a trademark, you could consider if you have a claim for trademark infringement.
Your brand is defined by the public’s overall perception of your business. If you believe your brand is being confused with another’s goods and/or services, then you should consider taking legal advice.
If you would like advice on how to pursue a claim of passing off please feel free to speak to a member of our Dispute Resolution team on 0161 832 3304.
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