You are the Judge – stop trading on my idea!


The ninth scenario in our You are the Judge series is a situation in which it seems someone is allegedly trading off the hard work and creativity of someone else. This is known as passing off. Is it unfair, or is it simply the free market?

So, what do you think of this scenario?

Passing off - IP law

Mario of Mario’s Top Pizza has been running his takeaway business for years.

He takes great pride in sourcing high quality local ingredients and delivering excellent Italian pizzas to his increasing loyal customer base. He considers himself to be a man of the community, often sponsoring school events and sports teams, making his red, white and green livery a common sight around town.

Two months ago a new pizza parlour opened in town. Top Hat Pizza is a cheaper outfit run by Dave, a local businessman with a dubious reputation.

Like Mario, he uses red, white and green branding, albeit in more lurid eye-catching shades, and he uses a similar font for the name of his business. The food is cheaper, his pizzas are far worse quality, often delivered late, cold and with a paucity of toppings.

This has made Mario very angry. He is certain that his hard-won reputation has been damaged by the interloper. He has come to your court and has asked for a summary judgement to force Top Hat to change their branding or cease trading.

Can Mario do this? Is Dave allowed to trade on the popularity of what seems to be someone's idea and also a nation's identity?

The answer:

Mario has been very hasty in asking for a summary judgement. Cases like this are subtle, and as a judge you will need to consider the facts carefully.

The law does not allow businesses to pass off their products as someone else’s in order to benefit from their reputation, but they must go beyond merely having a similar name and branding. They must be similar enough to cause actual or likely confusion in the minds of the public. This is the crucial factor.

In this case, you will need to consider carefully whether someone might really think the products are the same. This is known as the ‘moron in a hurry’ test. In other words, someone could possibly make the mistake if they were particularly distracted or dim-witted, but this would be insufficient to count as passing off.

Refuse to give a summary judgement and hold a full trial to decide the facts. The end result could still be passing off, but it requires more information.

0808 1593 554
or fill in the form
Our trained advisor contacts you
Your chosen specialist solicitor calls you
Quick enquiry form
Area of law:
What our clients say about us
"This was the first time I've been to court, which was a nerve-racking experience for me. However, I felt very prepared, I understood my case and representation - this was down to you."
Gavin, criminal motoring, Oct 15
"Your service, and the prompt call back from your recommended firm was very good. I would not hesitate to call again or recommend your service."
Ian, employment law, Truro, July 15
"The firm were excellent, could not have been better! They are exactly what I need right now."
Linda, criminal defence, Thames Ditton, Jul 15
"Your contact and service was immediate and utmost professional, 10/10."
TF, conveyancing, Dudley, Jun 15
"I appreciate the service that you provide. I found you to be courteous, efficient and reassuring at a time when my confidence in justice is completely negative."
Patrick, litigation, Pontypridd, Jun 15
"I cannot tell you how much I appreciate the speed of which you came back to me in. If anyone else can benefit from your help like I have done, it would make my day."
Gail M, family law, Potters Bar, Jun 15
"Your assistance was extremely helpful. Particularly to someone who in 40 years of business has never experienced this sort of issue."
TD, commercial litigation, Galashiels, Apr 15
"It is difficult to express the value Contact Law has to someone like me who had very little understanding of the law and how to proceed forward with my case. Thank you for the service you provided."
AE, defamation law, Worthing, Apr 15
"Thank you for the efficient service I received. I was contacted by your solicitor on the same day as my request. Your quick response to my situation made me feel secure."
AN, employment law, London, Apr 15
"Your service was excellent, very fast and informative. I never got the impression of being pressurised at all. The solicitor you recommended was also excellent – very knowledgeable and supportive."
JHD, Motoring law, Liverpool, Apr 15
Contact Law supports the endeavours of STAE and commends all the work they are undertaking to assist in the plight of the Asian Elephant


We use cookies on the Contact Law site to help us improve it.

If you would like to allow our cookies, please click 'Continue' or carry on browsing. For more information on cookies and how to change your settings, click 'More info'.