Passing Off and Brand Copying: When Another Business Looks Too Much Like Yours
Brand copying is not always an identical trademark - sometimes it is the overall impression. How passing off differs from infringement, what to document, and how to respond to a lookalike competitor.
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Key takeaways
- Brand copying can be about overall impression, not only an identical trademark.
- Passing off and trademark infringement involve distinct legal considerations, including goodwill and customer confusion.
- Document your earlier use and preserve how the competing business presents itself.
- Strategy should follow the evidence, not visual similarity alone.
“A competitor has started using a name, logo, packaging or presentation that looks remarkably similar to ours.”
Brand copying does not always involve an identical trademark. Sometimes the concern is the overall impression created by another business and the possibility that customers may believe there is an association between the two.
Passing off versus trademark infringement
Passing off and trademark infringement involve distinct legal considerations. Questions may include similarity between marks, goods or services, goodwill, customer confusion and the manner in which the competing identity is being used.
Where to look for similarities
Businesses should monitor competitors, search engines, websites, marketplaces, social media, advertisements and newly appearing digital identities for suspicious similarities.
Document your earlier use
Document the earlier use of your brand and the allegedly copied material. Preserve dates, URLs, advertisements, packaging images, product listings, screenshots and other evidence showing how the competing business presents itself.
Let the evidence decide the strategy
Depending on the circumstances, a response may include a legal notice, platform complaint, opposition or other trademark proceedings, or civil litigation. The correct strategy should be determined after examining the evidence rather than reacting solely to visual similarity.
Catch it before it becomes a dispute
Continuous brand monitoring can identify potentially problematic activity before it develops into a larger dispute. For many businesses, using technology to identify potential issues and involving IP counsel only when substantive legal action is required can be more economical than retaining lawyers for continuous surveillance.
With an enforcement-focused approach informed by IP litigation experience, DiReFTY helps businesses detect, document and respond to brand copying and digital misuse.
Frequently asked questions
A competitor's logo and packaging look very similar to ours. Is that passing off?
It may be. Passing off turns on questions such as goodwill, customer confusion, and how the competing identity is used, which differ from trademark infringement. The answer depends on the evidence, not visual similarity alone.
What should I document if I suspect brand copying?
Your earlier use of the brand and the allegedly copied material: dates, URLs, advertisements, packaging images, product listings, and screenshots showing how the competing business presents itself.
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