What passing off means
Passing off protects reputation, not registration.
It is a common law claim, and it exists because a business can build genuine goodwill in a name, a logo, a get up or a packaging style without ever registering anything. Somebody who then trades in a way that leads customers to think their goods come from you is taking something that belongs to you.
Three things must be established, and they are usually described as the classical trinity.
Goodwill: you must have a reputation attached to the name, mark or get up, in the minds of the buying public.
Misrepresentation: the defendant must have represented, whether deliberately or not, that their goods or services are yours or connected with you.
Damage: you must have suffered, or be likely to suffer, damage as a result, whether through lost sales or through harm to your reputation.
Miss any one and the claim fails.
How it is used
Passing off is the fallback for businesses that never registered a trademark, which in Nigeria is most of them.
A restaurant that has traded under a name for eight years finds a competitor opening under a confusingly similar one. A manufacturer's packaging is imitated closely enough that shoppers pick up the wrong product. A service business finds somebody using its name on social media to solicit its customers.
The remedies are the ones you would expect: an injunction restraining further use, damages or an account of the profits made, an order for delivery up or destruction of infringing material, and sometimes a declaration.
Proof is where the work is. Goodwill is established with evidence: how long you have traded, turnover, advertising spend, press coverage, social media presence, customer recognition. Misrepresentation is established by showing the similarity and, where possible, actual confusion, which is why examples of customers contacting the wrong business are so valuable.
A cease and desist letter setting all of that out, with the evidence attached, resolves many disputes before proceedings.
Key features
- A common law claim protecting goodwill in unregistered names and get up
- Requires goodwill, misrepresentation and damage
- Protects packaging and trade dress as well as names
- Remedies include injunction, damages or account of profits, and delivery up
- Harder and more expensive to prove than registered trademark infringement
- Available alongside a trademark claim where a mark is registered
How this works in Nigeria
Nigerian courts recognise passing off and grant injunctions in appropriate cases, and it does real work in a market where most businesses have not registered their marks.
The practical difficulty is evidence. Establishing goodwill requires records, and many Nigerian small businesses have thin documentation of turnover, advertising and customer recognition. A business that has traded successfully for years may struggle to prove it in the form a court wants.
That is the argument for registration. A registered trademark shifts the case entirely: you prove the registration and the similarity, rather than proving your reputation from scratch. It is faster, cheaper and considerably more predictable, and the registration fee is small next to the cost of a contested passing off action.
The other Nigerian reality is that registration is a race. The system is first to file, so a business that trades for a decade without registering can find somebody else has registered its own name. Its remedy is then a passing off action and an opposition or challenge, which is the expensive route to a position registration would have given it at the outset.
Online impersonation is the growing category. Platform reporting mechanisms are often faster than litigation, and should be used alongside a demand letter rather than instead of legal advice.
Passing off vs trademark infringement
Two routes to stop somebody using your brand, with very different burdens.
Trademark infringement requires a registered mark. You prove the registration, the similarity and that the goods or services fall within the registration. Your reputation is not in issue. It is quicker, cheaper and far more predictable.
Passing off requires no registration but demands much more. You must prove goodwill, which means evidencing your reputation with records. You must prove misrepresentation, which usually means showing confusion. And you must prove damage.
So the difference is not whether you can act, it is how much it costs to act. A registered proprietor writes a letter citing a registration number. An unregistered business assembles years of accounts, advertising records and customer evidence.
That gap is the whole argument for registering a mark, and it is why a Nigerian business trading under a name it cares about should register it before it needs to enforce it.
Limits and risks
The claim protects goodwill, so a new business with no established reputation has very little to protect.
Geographic scope can also be limited. Goodwill built in one city may not support a claim against a business operating in a different part of the country, though national reputation is easier to establish now than it once was.
Evidence of confusion is hard to gather, and courts want more than assertion.
Costs and delay are real. A contested passing off action is a substantial piece of litigation, and the defendant may have built their own business in the meantime.
And it does not stop registration. Somebody may still register a mark similar to your unregistered name, and challenging that is a separate process.
Worth knowing
Register the mark before you need to enforce it. Nigerian trademark registration is first to file, so a business trading for ten years under an unregistered name can lose it to somebody who filed last month, and its only remedy is the harder and more expensive claim.
Questions people ask
What is passing off?
A common law claim against somebody who trades in a way that leads customers to believe their goods or services are yours. It protects goodwill in unregistered names, logos and packaging.
What must I prove in a passing off claim?
Three things: goodwill, meaning an established reputation in the name or get up; misrepresentation, meaning the defendant led customers to believe their goods were yours; and damage, actual or likely.
How is passing off different from trademark infringement?
Trademark infringement requires a registered mark and you prove the registration and the similarity. Passing off requires no registration but you must prove your reputation, the confusion and the damage, which costs far more.
Can I stop someone using my business name if I never registered it?
Potentially, through a passing off claim, provided you can evidence the goodwill you built and the confusion caused. It is available but it is a much heavier exercise than enforcing a registration.
What evidence establishes goodwill?
How long you have traded, turnover, advertising spend, press coverage, social media following, and examples of customers actually confusing the two businesses. Records matter, and most small businesses hold too few.
Someone registered a trademark similar to my unregistered name. What now?
Nigerian registration is first to file, so you would be looking at an opposition or challenge alongside a passing off claim. It is the expensive route to a position registration would have given you at the start.