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Goodwill in Passing Off

Hardback

Goodwill in Passing Off

A Common Law Perspective

9781847209009 Edward Elgar Publishing
Catherine W. Ng, Senior Lecturer of Law, School of Law, University of Aberdeen, UK
Publication Date: 2021 ISBN: 978 1 84720 900 9 Extent: 256 pp
The law of passing off protects traders from a form of misrepresentation that harms their goodwill, and consumers from the market distortion that may result. This carefully-crafted work seeks to delineate two intertwined aspects of goodwill:  substantive and structural goodwill. It argues that the law of passing off should focus on protecting structural goodwill, and that this in turn allows traders’ authentic voices to help shape the substantive goodwill to attract custom for them in the marketplace.

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Contents
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The law of passing off protects traders from a form of misrepresentation that harms their goodwill, and consumers from the market distortion that may result. This carefully-crafted work seeks to delineate two intertwined aspects of goodwill:  substantive and structural goodwill. It argues that the law of passing off should focus on protecting structural goodwill, and that this in turn allows traders’ authentic voices to help shape the substantive goodwill to attract custom for them in the marketplace.
 
The author clarifies the concept of 'goodwill', and examines this concept in the context of the common law jurisdictions of Australia, Canada, England and Wales as well as of relevant case law under §43(a)(1)(A) of the US Lanham Act. The book analyses the application of the law of passing off within the multi-directional social exchanges that traders, consumers and commentators engage in, as well as challenges the current consumer search costs theory that underpins the law of passing off and trademark laws.
 
Providing a fresh look at this ever-changing aspect of law, this book will be key reading for legal scholars and students for its examination of inconsistencies in current law. Legal practitioners will also find this an invaluable resource as it considers the diverse application of the law.
Critical Acclaim
‘This book explores an area of the law which is an important tool for regulating the market but has attracted less attention than it deserves. Ng presents an original argument that misrepresentation not goodwill should be central to the tort. The book is expansive, covering a number of jurisdictions and also the relationship of passing off to registered trademarks and other intellectual property rights. Overall, it presents a significant reconceptualization of the law of passing off.’
– Jennifer Davis, University of Cambridge, UK

‘Catherine Ng provides a clear elucidation and critique of a complex yet vital subject that lies at the heart of every passing off action. Both scholarly and practical, Goodwill in Passing Off weaves together a thorough analysis of historical and contemporary UK cases with comparative perspectives and a novel argument that reconceptualizes how we should think about goodwill in today’s world.’
– Ilanah Fhima, University College London, UK

‘Catherine Ng makes a compelling argument for the rational reconstruction of passing off in the 21st century. The key move is to foreground a more relevant form of goodwill (source identification) as opposed to its historic form (the attractive force bringing in customers). Building on comparative law insights, she proposes a more tightly integrated tort. One that is organised around misrepresentation. One which unlocks the utility of passing off in an interconnected world, without extending as far as full-blown brand protection. This ambitious and thought-provoking book will be of considerable interest – as well as practical value – to anyone working in the field of trade marks.’
– Dev Gangjee, University of Oxford, UK
Contents
Contents: 1. Clarifying the law of passing off 2. Rationalizing the law of passing off 3. Branding in commercial and social settings 4. Applying the law of passing off 5. The trouble with protecting substantive goodwill 6. Applying the law of passing off without substantive goodwill 7. Conclusions Index

This title is available for institutional purchase via Elgaronline.

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£25.00
eISBN: 978 1 80088 774 9
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