Re: Passing Off

Subject: Re: Re: Passing Off

Comments:
: : Company A manufacturers a recognized product under a trademark name. They go out of business. They sell their trademark at auction. : : Company B manufacturers similar products. Company B did not purchase the trademark. : : The key vendor for company A has a supply of ingredients that made the company A product unique and makes it available to others. Company B buys the ingredients from the vendor and with those ingredients begins to manufacture a product that is now exactly the same as the defunct Company A trademaked product under a different name. : : Since the ingredients provided by the vendor now make company B's product exactly the same as that which was trademarked,if company B now begins to market the product under a different name as an exact replacement of the trademarked product showing a comparison of exact specifications, is this considered Passing Off? : : Are there other intellectual property or trademark issues at play that company B should be aware of? : Dear J, : Its been a long time since I've taken a Law School exam. This looks like one. : Without taking any professional responsibility for the answer, the way I see this is: : Passing off is the misuse of a trademark relying on anothers trademark and substitutiing another product for the trademarked article. : As posed the name is the issue and B is not passing off as the question has been posed. : There may be factual questions as to how B markets their product. Plain truthful advertizing may go very far. There may be issues of unfair competition on the exact facts. : On the statement of facts, I don't see any passing off. : If you are the A trademark owner or lawyer or B's lawyer or owner then why don't you take us on. The questions should be gone over in light of the exact facts. : If I were A's sucessor, I might sue you even if I lost and I would also look for trade secret violations. : The purchaseer of A's mark under some circumstances may not have "valid" rights. : M. Arthur Auslander : Auslander & Thomas-Intellectual Property Law Since 1909 : 505 Eighth Avenue, New York, NY 10018 : 212-594-6900, fax 212-244-0028, aus@auslander.com : ELAINE's Workshop (sm) : E arly L egal A dvice I s N ot E xpensive

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