According to Lord Diplock, five characteristics must be present in
order to create a valid cause of action for passing off: (1) a
misrepresentation (2) made in the course of trade (3) to
prospective customers of his, or ultimate consumers of goods or
services supplied by him, (4) which is calculated to injure the
business or goodwill or another trader - in the sense that this is a
reasonably foreseeable consequence - and (5) which cause actual
damage to a business or goodwill of the trader by whom the action
is brought or will probably do so.
Lord Oliver held that there were three elements that the plaintiff has
to prove in order to succeed in a passing off case: (1) he must
establish that the “get-up” under which his goods or services are
provided, is associated by the consumers to the goodwill or
reputation attached to his goods or services and is considered by
the consumers as distinctive of his goods or services, (2) he must
prove that there is a misrepresentation by the defendant to the
public leading or likely to lead the public to believe that the goods
or services he offers are the goods or services of the plaintiff and
(3) he must demonstrate that he suffers or is likely to suffer damage
due to this misrepresentation.
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