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The essence of a passing-off action is a misrepresentation and resultant confusion in the minds of the public which causes or is likely to cause damage to the plaintiff.

As noted in a previous blog post on Re:Sound tariffs, Re:Sound Tariff No. 6.B (Use of Recorded Music to Accompany Physical Activities), sets the royalties to be paid for the performance in public or communication to the public of published sound recordings in any indoor or outdoor venue for the purposes of fitness, training, skating, dance instruction or any other physical activity.