What Is Passing Off In Australia?

Your brand is often your most valuable asset. It’s how customers recognise you, trust you and come back. But what happens if another business starts using a name, logo, packaging or get‑up that makes customers think they’re dealing with you? That’s where passing off comes in.

In Australia, passing off is a powerful legal action you can use to stop competitors from trading on your reputation and goodwill. Even if you haven’t registered a trade mark, you may still have strong rights under passing off and related consumer laws.

In this guide, we’ll break down passing off in plain English, show you how it differs from trade mark infringement and misleading or deceptive conduct, and share practical steps to protect your brand from copycats.

What Is Passing Off And Why Should Your Business Care?

Passing off is a common law (judge‑made) action that protects your business’ “goodwill” - the reputation and distinctiveness you’ve built in the marketplace. A passing off claim targets businesses that misrepresent themselves so customers believe their goods or services are connected with yours when they’re not.

Think of passing off as a shield for unregistered brand rights. If you haven’t registered a trade mark, you can still rely on passing off to stop lookalike names, logos, packaging, trade dress, social media handles or domain names that confuse customers.

Why it matters for small businesses:

• You can act even without a registered trade mark (though registration makes life easier).
• It helps you prevent erosion of your brand’s distinctiveness and customer trust.
• You can seek court orders (injunctions), damages or an account of profits to address the harm.

Passing Off vs Trade Marks vs Misleading Or Deceptive Conduct

Passing off frequently travels with two other legal tools: trade mark infringement and the Australian Consumer Law (ACL) rules about misleading conduct. Each has a different role, and many brand disputes allege more than one.

Trade mark infringement

A registered trade mark gives you exclusive rights to use (and stop others using) your mark for nominated classes of goods/services. If someone uses a sign that’s substantially identical or deceptively similar for related goods/services, you can pursue infringement.

A registered mark is often the most efficient path because you don’t need to prove you’ve built reputation first. If you haven’t registered yet, consider moving quickly to register your trade mark and choose the right coverage using appropriate trade mark classes.

Misleading or deceptive conduct (ACL)

Section 18 of the ACL prohibits conduct that’s misleading or deceptive or likely to mislead or deceive. It’s broad, and courts often use it alongside passing off. Brand “lookalikes,” confusing claims of affiliation and deceptive packaging can all be captured.

To understand how this works, it’s useful to read about section 18 of the ACL and, for specific false statements about goods/services (like origin, quality or endorsements), the section 29 false representation rules.

How passing off fits in

Passing off focuses on protecting your goodwill from misrepresentations. It’s powerful when you have a distinct get‑up or reputation but don’t yet hold a registered mark, or where the misrepresentation extends beyond the exact name/logo (for example, overall packaging and trade dress).

Common Passing Off Scenarios For Small Businesses

Passing off isn’t just for global brands. We regularly see disputes at the local or niche level where lookalike branding confuses customers. Common scenarios include:

• Similar business names in the same area: A competitor launches with a near‑identical name in your suburb, causing deliberate mix‑ups in calls, bookings or reviews.
• Copycat packaging and trade dress: A rival adopts your colour palette, fonts, layout, product shape and shelf presentation so a casual customer mistakes their product for yours.
• Misleading claims of affiliation or history: A business suggests it’s your “sister brand,” “official stockist,” “authorised installer” or “founded in 1999” when those claims are untrue but attract your customer base.
• Domain names and social handles: Someone registers a domain or social handle that’s confusingly close to yours (especially in the same industry) and funnels traffic to their site.
• Franchise or reseller spin‑offs: A former reseller or partner continues to use elements of your brand get‑up after the relationship ends, giving customers the impression the affiliation still exists.

In each case, the core problem is the same: customers are likely to believe the other business is connected with you, and they may buy from them thinking they’re buying from you. That’s the harm passing off is designed to stop.

How Do You Prove Passing Off? (The Three Elements)

While every case turns on its facts, courts typically consider three core elements for passing off:

1) Goodwill or reputation in the market

You need to show your business has a reputation among customers in relation to the sign, get‑up or aspects of your branding. This can be local, regional or national, depending on where you trade. Evidence might include:

• Duration of trading under the relevant name or get‑up
• Sales figures, customer numbers and market share
• Advertising spend, media coverage and online presence
• Customer reviews, testimonials and social proof
• Distinctive features of your packaging, store fit‑out or website

2) Misrepresentation by the other business

You must show the other business misrepresented their goods/services as being yours or connected with you. This doesn’t require intention - the question is whether the conduct is likely to lead a reasonable customer to that mistaken belief.

Misrepresentation can be explicit (e.g. “we’re the official partner of X”) or implied by a confusingly similar name, logo, packaging or overall trade dress.

3) Damage (or likelihood of damage)

Finally, you must show actual damage or a real likelihood of damage to your goodwill. This could include lost sales, price erosion, harm to reputation or dilution of your brand’s distinctiveness.

Courts often infer damage when confusion is likely, especially in direct competition. But evidence - such as misdirected calls, emails, screenshots of confused customer comments or sales impact - strengthens your case.

Practical Steps To Prevent Passing Off (Protect Your Brand)

The best passing off dispute is the one you never have to fight. A few proactive moves go a long way to deter copycats and make enforcement faster and cheaper if you need it.

Lock down your core brand assets

• Register your trade mark: A registered mark is the most straightforward way to defend your name and logo, and it complements passing off. Move early to register your trade mark in the right classes for your products and services.
• Secure domains and social handles: Register common domain variations and social handles before you launch, especially if your brand name is short or highly desirable.
• Keep a brand evidence file: Save dated screenshots of your website, packaging, social media and ads. Keep records of ad spend, sales, PR and awards. This evidence helps prove goodwill quickly if a dispute arises.

Design for distinctiveness

• Avoid generic get‑up: Choose a distinctive colour palette, stylised logo and packaging shape/layout that clearly sets you apart in your category.
• Be consistent: Apply your brand elements consistently across your site, packaging, invoices and signage so customers strongly associate them with you.

Watch the market

• Monitor competitors: Set up alerts for your brand name, follow key hashtags and check new entrants in your niche. Early detection makes resolution faster and friendlier.
• Address confusion immediately: If you see misdirected reviews or customer comments, politely correct them and keep screenshots as evidence.

Use clear contracts in your supply chain

• Reseller and partner terms: If you allow others to sell your products, include strict branding guidelines, correct attribution and prompt cessation obligations if the relationship ends.
• IP ownership and licences: Make sure your agreements spell out who owns the brand assets and how they can be used. If you need tailored support, consider speaking with an intellectual property lawyer to put the right provisions in place.

What Can You Do If Someone Is Passing Off Your Business?

If you’ve spotted a lookalike or misleading affiliation in Australia, here’s a pragmatic approach that balances cost, speed and outcomes.

1) Gather evidence

Act fast, but record everything first. Take timestamped screenshots of websites, ads, packaging, social posts and any misleading statements. Save examples of customer confusion (emails, reviews, DMs) and note dates when confusion occurred.

2) Assess your legal angles

Passing off may be one of several strong claims. Depending on the facts, you may also rely on trade mark infringement (if you’re registered) and the ACL’s prohibitions on misleading or deceptive conduct and false representations. Using multiple angles can increase your leverage and speed up resolution.

3) Send a carefully drafted letter

In many cases, a strong but commercially sensible letter is enough to stop the conduct. A lawyer can prepare a tailored letter of demand or a cease and desist letter outlining your rights, the misleading elements and what the other party must do (for example, stop using the sign, change packaging, transfer a domain and account for profits).

4) Negotiate practical undertakings

Often, you can resolve disputes without litigation. Common outcomes include a rebrand within a set timeframe, destruction of infringing packaging, SEO and social clean‑up, corrective statements and contribution to your costs. Clear, written undertakings minimise the risk of backsliding.

5) Seek urgent court orders if needed

If harm is escalating or a launch is imminent, you can apply for an urgent injunction to stop the conduct pending a full hearing. Courts can also award damages or an account of profits, and order delivery up or destruction of infringing materials.

6) Strengthen your long‑term position

Once the dust settles, review your brand protection strategy. Register or broaden your trade mark protection, tighten partner agreements and refresh your brand monitoring processes so you’re ready next time.

Frequently Asked Questions About Passing Off

Do I need a registered trade mark to bring a passing off claim?

No. Passing off protects unregistered goodwill. However, having a registration makes enforcement more straightforward and is an excellent complement to passing off. If you haven’t already, consider lodging an application to register your trade mark.

Is “copying” illegal by itself?

Not always. The law targets misrepresentation that causes customer confusion. If a competitor independently uses similar functional features or generic elements without causing confusion about source or affiliation, it may not be passing off. That’s why distinct branding and clear evidence of confusion are so important.

Is passing off the same as misleading or deceptive conduct?

They overlap but aren’t the same. Passing off protects your goodwill from misrepresentations, while the ACL broadly prohibits conduct that misleads or deceives consumers, even if no specific business is targeted. Many brand disputes allege both passing off and ACL breaches under section 18 (and sometimes section 29).

What remedies can I get?

Typical remedies include injunctions (to stop the conduct), damages, an account of profits, delivery up or destruction of infringing materials and corrective statements. Many matters resolve through negotiated undertakings before a full trial is needed.

How can I reduce the risk of someone passing off my brand?

Focus on distinctiveness, consistency and early registration. Secure your core brand rights, use clear partner/reseller terms and keep a live evidence file. Monitoring and quick, well‑judged action often prevent long disputes.

Key Takeaways

• Passing off lets you stop competitors from trading on your goodwill by using confusingly similar names, logos, packaging or get‑up.
• It’s commonly used alongside trade mark infringement and the ACL rules on misleading or deceptive conduct and false representations.
• To prove passing off, you’ll generally need to show reputation, misrepresentation and damage (or a real likelihood of damage) in the Australian market.
• Proactive steps - like registering your brand, choosing distinctive get‑up and keeping evidence - make enforcement faster and cheaper.
• Most disputes can be resolved commercially through a targeted cease and desist letter and undertakings; urgent court orders are available if needed.
• A cohesive strategy that combines passing off with trade marks and robust commercial contracts gives your small business strong brand protection.

If you’d like a consultation about passing off and brand protection for your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no‑obligations chat.