Brand Protection Law: Key Points On Passing Off Unregistered Trade Mark

As businesses strive to distinguish themselves in the marketplace, the risk of deceptive practices (knowingly or unknowingly) by competitors increases. The intellectual property law offers protection to registered trade mark. However, owners of unregistered trade mark are not without some remedies if their mark has acquired some good will in the course of commerce. At common law, a brand owner may sue for tort of passing off in the event of any infringement even if such brand is not a registered trademark. Passing off, originally a common law tort, is designed to protect a person's business reputation and goodwill from unfair trade practices and sharp practices by imposters or impersonators. Please note that the Supreme Court in Patkun Industries Ltd v. Niger Shoes Ltd. (1998) 5 NWLR (Pt. 93) 138 held that "passing off" is a statutory right (and not a common law right) having been promulgated in section 3 of the Trade Marks Act, 1965.