Question

Two alienated brothers operated independent business dealing with safety products. One (Brother A) operated through Dentec Safety Specialists Inc. and used a domain name website Dentecsafety.com. His brother (Brother B) knowing this, intentionally registered the name Dentecsafety.ca and at that web site redirected customers to his own website degilsafety.com. This action is brought by Dentic Safety Specialists operated by the first brother (Brother A). In it he claims the actions of Degil Safety products amounted to a passing off and seeks general damages and punitive damages.

Explain the arguments for both parties, what has to be established in a passing off action and the likely outcome.

Answer 1

If one firm has distinctive / clearly distinguishable features, another firm can’t copy them in an endeavour to pass them off as its own. There are many remedies possible if this occurs and many defences in the occurrence of a claim.

Goodwill /reputation of a firm is something which is utilized to try to provide an identity to a corporation & its commodities which differentiates them from those of its rivals.

If someone else utilizes this reputation/ goodwill, the owner of the firm can stop this by utilizing the rule against passing off. To win a passing off litigation the plaintiff has to establish that:

• They possess a goodwill/reputation in their items, mark, etc
• Some misrepresentation has been done by the offender which has caused confusion
• This misrepresentation has led to loss in the plaintiff's goodwill in the plaintiff's items/ name/ mark.