Passing Off

Section 1 of the Commercial Torts Law prohibits a business from selling products or services that consumers may think are connected to a different business. The conceptual basis for the tort of passing off is protecting reputation and preventing a situation in which one business “rides the coattails” of another business’s reputation by manufacturing a product that the public may connect to the reputation of another product. A blatant example of passing off is a situation in which a new product is similar to another product in the market with a good reputation to the point of being misleading, but the name of the product does not infringe on a registered trademark. In such case, it is possible to prevent the new product from being distributed and even sue for damages based on the cause of action of passing off. Passing off itself can be the main cause of action, or can be a secondary cause of action together with other causes of action in the field of intellectual property such as copyright infringement, trademark violation, patent violation, and design rights infringement. A lawsuit based on passing off requires special skill to prove the reputation of the original product and the fact that the infringing product may be misleading target audiences, based on complex and constantly developing case law on the subject. Our firm has extensive experience in lawsuit based on passing off.