Convergences and Development
Edited by Nari Lee, Guido Westkamp, Annette Kur and Ansgar Ohly
Chapter 4: Personality endorsement and character merchandising: A sparkle of unfair competition in English law
Passing off is part of the arsenal against unfair trading that is available according to English law, a tort developed by the courts that coexists with registered trade mark law but does not protect trade marks as such. It protects goodwill, in a broad sense, by covering all sorts of indicia that function as goodwill communicators in the marketplace. And although goodwill is recognised as property, passing off is not an exclusive right over the use of goodwill communicators but rather a right to stop particular acts; these acts, in other words the borders of passing off, are mapped by the courts that often endow specific factual contexts with jurisprudential value. The principle that "nobody has any right to represent his goods as the goods of somebody else" forms the core of the tort. Lord Diplock described the contemporary, extended form of the tort. Its purpose is to regulate "unfair, not to say dishonest, trading of a kind for which a rational system of law ought to provide a remedy to other traders whose business or goodwill is injured by it. Unfair trading as a wrong actionable at the suit of other traders who thereby suffer loss of business or goodwill may take a variety of forms, to some of which separate labels have become attached in English law.
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