Protecting Business Reputation in Australia — Section 52 of the Trade Practices Act and Passing Off

Abstract

The common law relating to the tort of passing off is the traditional means by which conduct threatening business reputation may be halted. During the past five years, the Federal Court of Australia has been called upon on many occasions to apply s 52 Trade Practices Act 1974 (Cth) to prevent such conduct. As yet, there has been no clear judicial statement as to the interrelationship and overlap between the two causes of action.

This Article discusses the scope of the two causes of action in the context of an allegation of actual or threatened erosion of goodwill. The types of cases in which such allegation is usually made is then examined and suggestions given as to which cause of action should be relied on.