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If consumers are not confused, is the law of passing off confused? Re-examining the element of deception in passing off through consumer behaviour theory in the luxury industry

Principal Supervisor:

Professor Joshua Aston JP

Associate Supervisors:

Dr Clare Tai & Dr Binbin Yu

Abstract

This research examines a conceptual tension at the core of the tort of passing off: while the doctrine purports to protect commercial goodwill, it recognises harm only where consumer deception is established. In contemporary markets, particularly in high-value branding, consumers may knowingly purchase imitative products without being misled as to origin. Such conduct, described as non-deceptive brand appropriation, falls outside the scope of passing off. Drawing on consumer behaviour and marketing theory, the project argues that the deception element of passing off is under-theorised and rests on an outdated model of consumer cognition.

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