Chapter 7: The Protection of Traditional Cultural Expressions with Passing Off and Laws Against Misrepresentation
7.1 INTRODUCTION This chapter will examine the protection of TCEs with passing off and laws against misrepresentation. It will examine how the elements of the action for passing off, and more particularly the extended passing off action, can provide protection for TCEs. Also, it will focus on some aspects of the US law of passing off and unfair competition and on section 43(a) of the Lanham Trademarks Act, and see how these influences combined led to the creation of the Indian Arts and Crafts Act, which is the object of the case study of this chapter. 7.2 7.2.1 PASSING OFF Introduction In the early nineteenth century, passing off1 developed in British and American common law as an offshoot of the legal action based on fraud and the torts of deceit and misrepresentation.2 The term passing off first appeared in 1842 in Perry v Truefitt,3 where Lord Langdale stated the principle that: A man is not to sell his own goods under the pretence that they are the goods of another man; he cannot be permitted to practise such a deception, nor to use the On passing off, see John Drysdale and Michael Silverleaf, Passing Off Law and Practice (2nd edn, Butterworths: London, 1995); J. Thomas McCarthy, McCarthy on Trade Marks and Unfair Competition (loose-leaf, Thomson West: New York) 25-5–25-23; Frank I. Schechter, The Historical Foundation of the Law Relating to Trade Marks (Columbia University Press: New York, 1925); Christopher Wadlow, The Law of Passing-Off: Unfair Competition by...
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