The Law of Passing Off – Goodwill Beyond Goods

Abstract

Claimants in England have no specific right to object to third party use of their personal identities. Where the fact scenarios appear to fit, claimants have brought actions under the law of passing off. The House of Lords once declared the English law of passing off as the “most protean” among unfair trading wrongs for traders who suffer a resulting loss of business or goodwill. Until the recent cases of Irvine v. Talksport and Fenty v. Arcadia Group Brands Limited, such claimants have not been successful. Has the law been rendered more protean with the recent extensions to cover, in these two cases respectively, false endorsement claims and false merchandising claims? This work takes a bifurcated view of the concept of goodwill to show that throughout the development of the English law of passing off, claimants are concerned with the protection not only of their trade at hand, and with distinguishing it from that of rival traders. Above all, claimants are concerned with the protection of their control over the aspect of their goodwill which garners their trade going forward. By increasingly taking a contextual approach in appreciating the public understanding of branding practices and applying it within the doctrinal framework of the law to address the claimants’ fundamental concerns, the courts are treating the law of passing off with coherence and yet with relevance to contemporary commercial and social practices.