"Copycat" Brands – How Close Is Too Close?

The issue of copycat brands has been around almost since people started trading and marking goods.

One of the earliest cases was reported in 1617, and in it one of the judges referred to a case involving a "a clothier, [who] had gained great reputation for his making of his cloth [and] he used to set his mark to his cloth, whereby it should be known to be his cloth and another clothier perceiving it, used the same mark to his ill-made cloth on purpose to deceive him, and it was resolved that the action did well lie."

The world of branding has moved on, but at the heart of a passing off case is deceit. That gives us the famous legal test from Perry v Truefitt: "A man is not to sell his own goods under the pretence that they are the goods of another man".