Protection of Marks under Trade Mark Law and Passing Off

Publication details

Ilanah Fhima, ‘Protection of Marks under Trade Mark Law and Passing Off' in Neil Wilkof, Shamnad Basheer and Irene Calboli (eds), Overlapping Intellectual Property Rights (2/e, OUP 2023)

Abstract

This chapter considers the overlap between trade mark law and passing off, with a focus on the law in the UK. It highlights that while these two legal actions are similar in many ways, there are some important distinctions, arising mainly because passing off is reserved for marks that have been used in the jurisdiction, whereas trade mark protection arises from the act of registration. Another difference is that passing off protects against misrepresentation, whereas trademark law also protects against use which is likely to confuse and, in some cases, simply bring the protected mark to mind. Conversely, passing off has evolved to offer pockets of protection that are wider than trade mark law.

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