TRADUguide - Your Guide to Translators and Translation Agencies

253 months ago

Carmen (a guest user) asked this question:

This question has already been answered and rated. Therefore, no new answers can be given.

253 months ago

   wrote:

imitación fraudulenta

253 months ago

AcTra   wrote:

Marcas protegidas por la ley anglosajona de usurpación

My comment:

Esta ley del derecho anglosajón se basa en el principio del "fraude comercial" y atañe a las marcas no registradas como forma de protección de las mismas.
La tergiversación de los hechos, ante el público, llevado a creer en la existencia de una vinculación entre el demandante y demandado, genera un perjuicio al primero quien está legitimado para incoar dicha acción..

The law of "passing off" is designed to prevent misrepresentation to the public where there is some sort of association between the plaintiff and the defendant. Where the defendant does something so that the public is misled into thinking the activity is associated with the plaintiff, and as a result the plaintiff suffers some damage, under the law of passing off it may be possible for the plaintiff to initiate action against the defendant.

Types of misrepresentation include:

using the mark of the plaintiff's product
using the get-up of the plaintiff's product
using the plaintiff's advertising theme
using the design or shape of the plaintiff's product.
For misrepresentation to be actionable, it must be one calculated to cause damage to plaintiff's goodwill. The plaintiff need not prove actual or special damage, a real and tangible probability of damage is sufficient for a claim of damages. Whether damage is done can be considered an acid test for which misrepresentations are actionable, and those that are beneath notice of the law.

One of the instances where passing off is actionable is the extended form of passing off, where a defendant's misrepresentation as to the particular quality of a product or services causes harm to the plaintiff's goodwill. An example of this is Erven Warnink v J Townsend & Sons (Hull) Ltd [1979] AC 731,
The extended form of passing off is used by celebrities as a means of enforcing their personality rights in common law jurisdictions. Common law jurisdictions (with the exception of Jamaica) do not recognise personality rights as rights of property. Accordingly, celebrities whose images or names have been used can successfully sue if there is a representation that a product or service is being endorsed or sponsored by the celebrity or that the use of the likeness of the celebrity was authorised when this is not true.

The asker rated this answer best