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Journal of Intellectual Property Law & Practice Advance Access originally published online on May 2, 2007
Journal of Intellectual Property Law & Practice 2007 2(6):366-368; doi:10.1093/jiplp/jpm062
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© The Author (2007). Published by Oxford University Press. All rights reserved

Current Intelligence

New developments in the law of passing off: misrepresentation by silence

Joel Smith, Partner and Sarah Burke, Associate
IP Group, Herbert Smith LLP
IP Group, Herbert Smith LLP

British Sky Broadcasting Group Plc & others v Satellite Direct UK Limited & others, 8 December 2006 [2006] EWHC 3165, (Ch) Briggs J

The High Court recently held that misrepresentation by silence can constitute an actionable misrepresentation. A trader may make a misrepresentation by failing to correct a self-induced mistaken belief of a customer, where the trader takes advantage of that mistaken belief. Failure of a trader to disabuse customers of the impression that they are dealing with the brand owner may be sufficient to constitute passing off. Brand owners welcome this decision as it provides protection against new entrants to the market who seek to piggyback on the success of their brand or trade mark.

Correspondence: joel.smith{at}herbertsmith.com

Correspondence: sarah.burke{at}herbertsmith.com


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