Passing Off Case Study

1.Introduction
Under the Intellectual Property Law, Passing Off is overseen by the law of Tort. Usually used in business suits, an affected individual or party, who feels their goodwill is being damaged, can pursue a civil lawsuit against another individual or party who creates the misconception that their merchandise or service are from or involves the claimant.
2. Procedure
To be effective in a passing off activity, the plaintiff must demonstrate that each of the following elements are met ^([1]):
2.1 Goodwill
The plaintiff should demonstrate that there is goodwill connected to their applicable products or service. The goodwill of a business is the estimation of its recognition far beyond the estimation of its advantages. Goodwill allows

2.3 Damage
The plaintiff lastly must have the capacity to show that the fallacy made by the defendant is likely to bring about, or has harm the plaintiff business. For instance, it can result in loss of profits, damaged reputation or loss of expansion chance.
3. Remedies
The remedies available to be awarded to the plaintiff for a successful lawsuit for passing off can be damages or an account of the defendant’s profits, an order for the delivery up or the destruction of the infringing articles or products, or an injunction.
4. Defences to claim
The defendant can defend against a claim of passing off by claiming the claimants mark, slogan etc. is not distinctive or has become common. Another defence is the defendant may be innocently using his or her own name or the claimant has given consent.
5. Case Study
The Singapore Professional Golfers’ Association v Chen Eng Waye and others
[2013] SGCA 18
This case is an appeal against the decision of the High Court judge (“the Judge”) in Suit No 290 of 2011 (“Suit 290”) concerning an action in passing off ^([2]).
5.1 Parties