What Is Passing Off?

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Published 6 August 2026 · Updated 6 August 2026 · 1 min read

Passing off is a common-law tort that protects the goodwill built up in a brand, name, or trade dress against misrepresentation by someone else — regardless of whether the mark is registered.

The three things you have to prove

Passing off claims are generally assessed against what's often called the "classic trinity":

Goodwill — genuine reputation and recognition attached to the mark in the relevant market.
Misrepresentation — the other party's use is likely to deceive or confuse consumers into believing there's a connection.
Damage — actual or likely harm to your goodwill as a result.

Each element has to be established with evidence, which makes passing off slower and more expensive to prove than a straightforward registered-trademark infringement claim.

Why it exists alongside registration

Section 27(2) of the Trade Marks Act, 1999 expressly preserves the right to bring a passing off action — registration doesn't replace it, and it remains available even to holders of a registered mark. For anyone who hasn't registered, it's often the only real legal recourse against a copycat, which is one reason registration isn't legally mandatory but leaves you meaningfully worse protected without it.

How it relates to well-known marks

A strong passing off case and well-known mark recognition often rely on similar underlying evidence — reputation, consumer recognition, and consistent use — but well-known mark status is a formal Registry or court recognition with its own, broader legal effect, while passing off is a case-by-case claim. Both are among the tools available against trademark squatting.