34. Damage

Abstract

This chapter examines one element that a claimant must prove to sustain a passing off action: the requirement that they have suffered, or are likely to suffer, damage as a result of the defendant’s misrepresentation. It first considers four types of damage that have been recognized by the courts in connection with misrepresentation: loss of existing trade and profits; loss of potential trade and profits; damage to reputation; and dilution. It then discusses the notion of extended passing off and its three elements: goodwill, misrepresentation, and damage. It also looks at the principles of unfair competition and their relevance in the UK.