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Passing off advice

Posted: Thu Nov 25, 2021 8:16 am
by EricTheodoreCartman
Hey guys, me with another quick one again. :D

So I'm ready to sell my 3D donut art, but I still have nagging worries about passing off. (The explanation seems as clear as mud. :oops: )

My art is:

But I'm worried if I use a similar frame to Jake Johnson art (link below), that he could argue I'm trying to pass my work off as his (even though he doesn't use black backgrounds).

Am I getting worried over nothing? Thanks! :D

Re: Passing off advice

Posted: Thu Nov 25, 2021 9:23 am
by AndyJ
Hi EricTC,

Perhaps the easiest way of understanding passing off is by thinking of it as form of trade mark law. However it is a part of common law, that is to say law made by the courts over a long period of time, not statute law. The purpose of passing off law is prevent deliberate or unwitting confusion being created in the minds of the public about the origin of goods or services which are on offer.

The best way to avoid a claim is to remove any confusion by unambiguously stating the true origin of the item. So in other words, use you own name or pseudonym when selling your art. And if you use a pseudonym, don't use something like Jake Jobson! When the courts look at a claim, they will also take into account the typical customer for the product or service. Famously it has been said that the law is not concerned with what a moron in a hurry might conclude about the origin; instead they would expect a member of the public to be reasonably attentive, especially if they are about to make an expensive purchase.

As you will probably know there are three elements the claimant would need to establish before a court would find a claim proved: that the claimant had goodwill in the relevant martketplace (ie the type of goods or services, or a geographical location or within a clearly defined section of the public); second he must establish that the behaviour being complained about amounted to misrepresentation which thus led to confusion within the public. And thirdly in the words of Lord Oliver in a case known as the Jif Lemon case, the claimant “must demonstrate that he suffers or …that he is likely to 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 of those offered by the plaintiff.”

I don't think Jake Johnson would have much difficulty in establishing that he has goodwill as an artist - he would just need get evidence from some people such as art dealers or well-known owners of his work. The second part, misrepresentation, is more difficult. Usually a claimant will supply evidence such as forum postings, letters or emails etc from the public to the claimant asking about the product which is actually the defendant's product. If your name is clearly shown on the artwork and in any advertising, it will be easy to show that such people are morons in a hurry if they continued to think that the art on offer was that of the claimant even though it bore the name of someone else. The damage element would in this case be to his reputation rather than lost sales of his own work. Again this would be harder to prove unless he was a particularly famous artist, when of course prospective buyers might be expected to pay greater attention to the provenance of the work they were considering buying.

Being 'in the style of' is not in itself sufficient grounds for a successful passing off claim, especially when one discounts the moron in a hurry.

Re: Passing off advice

Posted: Thu Nov 25, 2021 3:01 pm
by EricTheodoreCartman
Andy, thank you again!

The explanation that they give on the government website is so confusing!

I've marked the listings that they have been made and designed by me twice - once on the listing headline and also in the bumf underneath.

Thanks again!