The term “passing off” refers to the act of selling goods under someone else’s name. This can happen through misrepresentation (such as using a trademarked brand name without permission) or by passing off products that are not your own as being your own.
The passing off law is a common law that governs the use of trademarks. Under this law, trademark infringement occurs when a person passes off his goods as those of someone else. In other words, passing off occurs when someone sells something they do not actually have ownership of.
In order to prove passing off, a plaintiff must show that (1) its mark has become distinctive through secondary meaning; (2) the defendant used the same or similar mark without permission; and (3) the defendant’s actions were likely to confuse consumers.
A trademark owner may bring a claim under the passing off law, whether or not it has registered its mark. However, a plaintiff cannot obtain damages unless it proves that the defendant’s conduct caused actual confusion among consumers. In addition, a plaintiff cannot recover attorney fees unless it prevails on its claim.