Competition is fundamental to free enterprise and the capitalist society. The thinking is that insecurity acts as an incentive to produce the best goods or services at the cheapest prices, and that where an enterprise enjoys a monopoly in respect of goods or services that are needed by society there is no incentive to root out undesirable factors such as overmanning and inefficiency. This, it is said, explains to a large extent the poor showing of most nationalised industries. There are, therefore, in the realm of private enterprise at least, laws against monopolies and restrictive practices. But it is also realised that not all forms of competition are fair. Filching what another has created is in many cases forbidden by the copyright, patent, and trade mark laws (the first differs from the last two in that patents and trade mark rights do not automatically arise but have to be sought by the creator). The disclosure of business secrets and other confidential information may be restrained at common law in appropriate cases, and slander of title and the tort of conspiracy may also be invoked by an injured party. Passing off is only one example of the ways in which unfair trading will be restrained by the law, being the tort committed when one trader misrepresents his goods as those of another. But from that concept has grown a more general doctrine that as yet has no official name. As we shall see, it stops short of a comprehensive condemnation of unfair trading, but it has gone a long way from the original tort of passing off, and contains the seeds for extensive future development.

We look first at the traditional tort of passing off. “A man is not to sell his own goods under the pretence that they are the goods of another man” (per Lord Langdale, M.R., in Perry v. Truefitt (1842) 6 Beav. 66, 73). Whether this be done intentionally or not, the result is the same, to cash in on the goodwill created by the other trader, who thereby loses business, and, if the new product is inferior, reputation as well. It is clear, therefore, that what is to be protected is the trader’s interest or property in the business and goodwill likely to be injured by the deception. This was first explicitly stated in the cases by Lord Parker in Spalding v. A. W. Gamage Ltd. (1915) 84 L.J. Ch. 449. Goodwill is a broad concept and may be defined as the benefit and advantage of the good name, reputation and connection of a business; it is the attractive force that brings in custom (per Lord MacNaghten in IRC v. Muller and Co’s Margarine Ltd. (1901) A.C. 217, 223–4).

There are many ways in which a man can misrepresent the provenance of his goods, explicitly and implicitly. The rule is this: “He cannot be allowed to use names, marks,