Duhaime's Law Dictionary


Inverse Passing-Off Definition:

Where a provider of goods or services takes the benefit of another's reputation by claiming that goods or services for which the other properly deserves the credit, were in fact hls.

Related Terms: Passing-Off, Reverse Passing-Off

Also known, especially in the United States, as reverse passing-off, for which further information is at Legal Definition of Reverse Passing-off..

It is the proud tradition of the common law, to mark time in the various areas of the law by significant legal decisions that nudge the law along. Sometimes, this will occur by the relatively quick shock of lex scripta, statute law. But when the law, as it were, is abandoned to the common law, to the interpretation of well-intentioned contemporary judges as to what wise old British tribal ancestors sitting before a fire hundreds of years ago would have done in the circumstances, we get real-time statements of the evolution of the law such as this from professor Christopher Wadlow of University of East Anglia Law School (Norwich):

"The classic example of passing-off takes place when one trader represents his goods or business to be those of another trader with a better reputation.

"Inverse passing~off (or reverse passing-off) is the name sometimes given to the situation where the defendant takes the benefit of the claimant's reputation is a less direct way, by claiming that goods or services for which the claimant properly deserves the credit were in fact his. This assumes that the public do not know the claimant by name, but no problem arises on that score.

"The common law was for long ambivalent in its treatment of inverse
passing-off, but it is now established that inverse passing-off is indeed tortious and that it can be accommodated within the wider form of passing-off which has been recognised since Advocaat (a.k.a. Erven Warnick B.V.). Inverse passing-off is not, therefore, a nominate tort in its own right but a further example of an actionable misrepresentation to which the normal principles of passing-off apply.

"Any treatment of inverse passing-off in English law previously faced the problem of attempting to reconcile two bodies of case law: the one refusing as a matter of principle to recognise inverse passing-off as actionable; the other being prepared to grant relief in what were in fact cases of inverse passing-off, but without expressly recognising them as such. However, the Court of Appeal (in the 1989 decision of Bristol Conservatories v Conservatories Custom Built) eventually came down in favour of recognising inverse passing-off confirming that it fell within the tort of passing-off as such."

REFERENCES:

  • Bristol Conservatories v Conservatories Custom Built, [1989] RPC 455 (United Kingdom)
  • Erven Warnink BV, [1979] A.C. 731
  • Wadlow, Christoper, The Law of Passing-Off, 4th Ed. (London: Sweet & Maxwell, 20112), pages 571-573

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