Protecting Product Advertising

Below is an excerpt from John McKeown’s April 2015 Mailer where he discusses protecting product advertising.

An action for passing-off can be brought concerning inappropriate product advertising. 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. The foundation of such an action is the existence of a property right in the goodwill and reputation associated with a trade name or business.

 The Elements Required to be Shown

Three elements must be shown in order to succeed. First, the plaintiff must establish the existence of goodwill in a particular trading indicia, whether a trade mark, trade name or other distinguishing feature, which indicates to the relevant public that the goods or services offered for sale in association with that indicia originate from, or are associated with, the plaintiff. In this way plaintiff’s trade dress is recognized by the public as distinctive of the plaintiff’s goods and services.

Second, the plaintiff must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that the goods or services offered by the defendant are the goods and services of the plaintiff.

Third, the plaintiff must demonstrate that it has suffered or that it will likely suffer damage by reason of the erroneous belief engendered by the defendant’s misrepresentation that the source of the defendant’s goods or services is the same as the source as those offered by the plaintiff.

Changing Commercial Realities

The role played by the tort of passing-off in the common law has expanded to take into account the changing commercial realities in the present day community. A number of cases have found that where a defendant has promoted its product or business in such a way as to create the false impression that its product or business is in some way approved, authorized or endorsed by the plaintiff or that there is some business connection between the defendant and plaintiff, this will constitute passing-off.

Monitoring and Protecting Copyrights on the Internet in 2015

I have been asked to speak at a webinar sponsored by the Knowledge Group to deal with the topic noted above. The webcast is scheduled to take place on May 12, 2015 but it is quite possible that it may be rescheduled. Additional information will follow.

Click here to read the entire mailer.