Abstract

The remedy in passing-off is directed against a representation made by the respondent that amounts to a misrepresentation that damages the goodwill of a business. The applicant in a passing-off claim must successfully establish its existing goodwill. In circumstances where the applicant’s business is abandoned, the accumulated goodwill may continue to subsist in the form of residual goodwill that is retained in the distinctive mark long after the business has ceased to exist. This article aims to explore whether the discontinued use of the get-up amounts to the abandonment of goodwill where the business continues, and whether residual goodwill subsists in the abandoned get-up, in the light of Beiersdorf AG v Koni Multinational Brands (Pty) Ltd 2019 BIP 23 (GJ). The article further examines the underlying challenges surrounding the application of the concept of residual goodwill, in particular where the applicant has abandoned the use of the mark or get-up, and the consequences that arise.