Passing Off Cease & Desist Letter

This Passing Off Cease and Desist Letter is designed as a first step where another party is alleged to be passing off.

Also known as a “letter of claim” or “letter before action”, it puts the alleged infringer on notice and seeks to resolve the matter without immediate litigation.

Passing off, goodwill and evidence

The letter should set out the goodwill and reputation relied on, together with details and evidence of the alleged passing off.

Supporting evidence may include specimens, photographs, marketing materials or other documents. The level of detail should be balanced: enough to support the allegation, but not so much that it could place you at a disadvantage.

Important legal point: use only for passing off

This template has been reviewed for compatibility with the Intellectual Property (Unjustified Threats) Act 2017 and updated to reflect current best practice.

Due to the risk of threats actions against would-be IP claimants, this letter should not be used for any matter other than passing off.

There is no threats action relating directly to passing off, but there is for registered trade marks, designs and patents. If the position is unclear, uncertain, or involves multiple IP rights, legal advice should be sought before taking any steps.

Undertakings, information and compensation

Once the goodwill, reputation and alleged passing off have been set out, the letter requires a series of undertakings from the recipient.

These include a request for information to help calculate sums that may be due for the passing off, together with a further undertaking to pay those sums.

• In some cases, a full account of profits may be desirable.
• Where the infringement is less significant, a smaller agreed sum may help conclude matters quickly and amicably.

Where there is doubt or disagreement, proper legal advice is urged.

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