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

The High Court recently held that misrepresentation by silencecan constitute an actionable misrepresentation. A trader maymake a misrepresentation by failing to correct a self-inducedmistaken belief of a customer, where the trader takes advantageof that mistaken belief. Failure of a trader to disabuse customersof the impression that they are dealing with the brand ownermay be sufficient to constitute passing off. Brand owners welcomethis decision as it provides protection against new entrantsto the market who seek to piggyback on the success of theirbrand or trade mark.