The method adopted for passing off includes:
(i) Direct false representation;
(ii) Adoption of a trademark which is the same or a colorable imitation of the trade mark of a rival trader;
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(iii) Adoption of an essential part of a rival trader’s name;
(iv) Copying the get-up or color scheme of the label used by a trader
(v) Imitating the design or shape of the goods;
(vi) Adopting the word or name by which the rival trader’s goods or business is known in the market, and many other ingenious methods
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Direct misrepresentation is rare. If a customer orders goods of particular make under a particular name and received something else it is a case of passing off although if he had examined the goods he would not have been deceived.
The defendant cannot rely on the fact that his statement is literally and accurately true, if, notwithstanding the truth, it carries with it a false representation. The circumstances under which and the reasons for which, the trade description was adopted is material.
If a person sells his goods as ‘similar to’ as better as’ those of another trader, he is not liable to an action for passing off even if such statements are untrue and injurious to the plaintiff. But the addition of the words ‘equal to’ or ‘substitute for’ even if inconspicuous may be liable to action.
