Goodwill Hunting in Passing Off: Time to Jettison the Strict 'Hard Line' Approach in England?

摘要

Lawyers in the Commonwealth are all too familiar with the common law action in passing off, which has been described as "the oldest of the modern legal regimes for the protection of trade symbols". To bring an action in passing off, a claimant must establish the "classical trinity": goodwill, misrepresentation and damage. The subject under discussion in this article, however, relates principally to the first of these elements (i.e. goodwill), and, more specifically, addresses the question as to whether a foreign trader, who may not be carrying on business in the jurisdiction, can nevertheless assert that he enjoys goodwill therein. This is an interesting area of study in the law of passing off where it may be usefully noted that the underlying substantive law is by no means uniform throughout the common law world.