Fair Trading Act (s 9) And Passing Off: Protect Your Business From Deception

When you've put time (and money) into building your brand, the last thing you need is a competitor riding on your reputation.

This is where passing off becomes a big deal for Australian small businesses. Passing off is a legal concept that can help you stop another business from misleading customers into thinking their goods or services are connected to you.

In Australia, passing off often goes hand-in-hand with misleading conduct laws (including the Australian Consumer Law, and in some contexts, state and territory fair trading legislation with similar "misleading or deceptive" provisions - sometimes found in provisions commonly referred to as "section 9", depending on the jurisdiction). If you suspect another business is confusing customers, copying your "look", or benefiting from your name, there are legal steps you can take.

Below, we break down what passing off means, how it overlaps with fair trading and consumer law, and how you can protect your brand from day one.

What Is Passing Off (And Why Does It Matter In Australia?)

Passing off is essentially about one business misrepresenting itself in a way that leads customers to believe it is another business (or connected to another business).

It matters because brand confusion can hit you where it hurts:

• Lost sales (customers buy from the wrong business).
• Reputation damage (if the other business has poor quality, customers may blame you).
• Extra cost (you spend time explaining you're not affiliated, or rebuilding trust).
• Long-term brand dilution (your name, logo, or "signature style" stops being uniquely associated with you).

Passing off can apply to lots of situations, including a confusingly similar:

• business name or trading name
• logo or brand colours
• packaging or labelling
• product get-up (the overall look and presentation)
• website domain name or social media handles
• advertising that implies an association (even if it doesn't say it directly)

And importantly: you don't need to be a big business to have rights worth protecting. Plenty of passing off disputes involve local businesses, online stores, consultants, and service providers.

If you're still choosing your name and wondering whether a competitor can operate under something similar, it's worth understanding when two businesses can have the same name (and when that's likely to create legal risk).

How Passing Off Links With Fair Trading Law (Including "Section 9" And The Australian Consumer Law)

In Australia, claims about brand confusion are commonly made under:

• Passing off (a common law "tort", built through court decisions over time), and/or
• Misleading or deceptive conduct laws (most commonly section 18 of the Australian Consumer Law, and in some cases, similar provisions in state/territory fair trading legislation - sometimes referred to as section 9, depending on the Act and jurisdiction).

These rules broadly prohibit a person "in trade or commerce" from engaging in misleading or deceptive conduct (or conduct likely to mislead or deceive).

That's a wide rule. It can capture a lot of behaviour that looks like passing off, such as:

• using branding that creates customer confusion
• implying endorsement, partnership, or affiliation that doesn't exist
• making claims that lead people to think they are buying from your business

So how do you choose between passing off and fair trading/consumer law? In practice, many businesses rely on both. They overlap, but they're not identical.

Passing Off Vs Fair Trading Law: What's The Practical Difference?

Here's the simple version:

• Passing off is heavily tied to your reputation and goodwill (what customers associate with your brand).
• Fair trading/consumer law focuses on misleading behaviour in trade or commerce - and can be available even where a business's reputation is still developing (although evidence of recognition and confusion is usually important in practice).

For small businesses, misleading conduct laws are often a practical tool because they're designed to stop misleading conduct in the marketplace generally (not just traditional "brand theft").

That said, every situation turns on its facts. If you're unsure which pathway applies, getting advice early can save you time and prevent you from firing off the wrong kind of legal notice.

What Do You Need To Prove In A Passing Off Claim?

While we won't dive into dense legal jargon, it helps to know the basic building blocks of passing off. Generally, you'll be looking to show three things:

1) You Have Goodwill Or Reputation In Your Brand

This means customers associate certain branding (like your name, logo, get-up, or other identifiers) with your business.

Goodwill can be built through things like:

• consistent use of your name and branding over time
• repeat customers and word-of-mouth
• marketing spend and reach
• media features or reviews
• sales volume and customer base

If you've been operating under a trading name, it's worth making sure you've taken steps to protect a business name properly, because "we've been using it for a while" doesn't always equal "we're fully protected".

2) The Other Business Made A Misrepresentation

The misrepresentation doesn't have to be an outright lie. It can be implied through branding choices, design, or the overall way they present themselves.

A key question is whether an ordinary customer is likely to be misled into thinking:

• they're dealing with your business, or
• the other business is connected to you (e.g. endorsed by you, a branch of your business, or part of your group)

3) You Suffer (Or Are Likely To Suffer) Damage

Damage can include lost profits, loss of reputation, or loss of control over your brand identity.

Even if you can't point to a neat dollar amount right away, you can still have a strong claim if the confusion is real and ongoing.

What Evidence Helps Most?

When you're dealing with passing off, good evidence makes your position much stronger. Useful evidence often includes:

• screenshots of the other business's website, ads, and social pages
• examples of customer confusion (emails, DMs, misdirected calls, incorrect reviews)
• your own brand history (launch dates, marketing, invoices, social engagement)
• your registrations (business name, domain name, and especially trade marks)

If you've registered your IP, you may have additional options beyond passing off, including trade mark enforcement. If you're at the "locking it down" stage, it's often worth register a trade mark so your rights are clearer and easier to enforce.

Common Passing Off Scenarios For Small Businesses (And Red Flags To Watch For)

Passing off isn't just about someone copying your logo exactly. In fact, the most common disputes involve things that are "close enough" to confuse customers.

Similar Names In The Same (Or Overlapping) Market

A competitor might adopt a name that's almost identical, especially if you're in the same industry or region.

Even where names aren't identical, confusion can still happen if the "dominant" part of the name is similar and you're targeting the same customers.

Copycat Branding And "Look And Feel"

This is very common with eCommerce, hospitality, beauty/wellness, and product-based businesses.

Red flags include:

• similar colour palettes and fonts
• similar packaging layout
• a similar tagline or slogan
• copying your "signature" product presentation

Domain Names And Social Media Handles Designed To Capture Your Customers

If a competitor buys a domain close to yours or sets up social handles that look like your brand, that can quickly create confusion.

Sometimes it's as simple as customers typing your name into Google and clicking the wrong listing.

Implied Affiliation Or Endorsement

Another business might hint that they're the "official" version of something, or that they're connected to you, without stating it directly.

This is where misleading or deceptive conduct rules (including fair trading/consumer law) can be particularly useful, because the focus is on whether conduct is misleading in the marketplace overall.

If you want a broader overview of risky conduct in the market, this discussion of unfair business practices is a helpful lens for what regulators and courts tend to take seriously.

How Do You Protect Your Business From Passing Off (Before It Happens)?

The best time to protect your brand is before a dispute starts. Once a competitor has built up their own presence using a confusingly similar brand, resolving it can become slower and more expensive.

Here are practical steps you can take from day one.

Do A Clearance Check Before You Commit To A Name

Before you print signage or build a website, do a sensible set of checks, including:

• Google search (including image search for logos)
• ASIC searches (for registered business names and company names)
• domain availability and existing similar domains
• social handle searches
• trade mark checks (to see if your name is already protected)

This is also the stage where many business owners ask: "But can someone else still use a similar name?" The answer depends on context, but it's worth understanding the rules around a same name in business, especially where there's market overlap.

Register Key Brand Assets Early

Registrations won't prevent every dispute, but they make enforcement much easier.

Common protections include:

• Domain name registrations (including common misspellings)
• Social media handles (even if you won't use them immediately)
• Trade marks for your name/logo where it's commercially important

Trade marks are particularly useful because they can give you clearer rights than passing off alone. If you're trying to decide whether a trade mark is worth it, it can help to understand how trade mark infringement claims work in practice compared to passing off and misleading conduct options.

Use Clear Written Agreements When You're Collaborating

Passing off disputes can pop up after collaborations, distributor arrangements, contractor relationships, or "let's build this together" projects.

If someone is helping with branding, marketing, or sales, your contracts should be clear on things like:

• who owns the brand assets
• how the brand can be used
• what happens when the relationship ends

As a general principle, if you're relying on an agreement to protect something important, you want to be confident it's legally binding and properly drafted for your situation.

Build "Brand Proof" As You Grow

In passing off claims, your evidence of goodwill and reputation is key. Small businesses can strengthen their position over time by keeping good records like:

• dated brand files and design drafts
• invoices showing trading history
• marketing campaigns and spend
• customer testimonials and reviews
• media mentions

This doesn't need to be complicated. Even a basic folder system can be a lifesaver if you later need to show "we were using this brand first, and customers associate it with us".

What Should You Do If Someone Is Passing Off Your Business?

If you suspect passing off (or misleading conduct), try not to rush into a public argument online. Your first steps should be strategic and evidence-based.

Step 1: Capture Evidence (Before They Change Anything)

Take screenshots and save copies of:

• web pages (including "about" pages and product listings)
• social posts and ads
• Google business listings
• packaging or labels (photos from multiple angles)

Also keep a record of customer confusion (for example, emails from customers asking if the other business is you).

Step 2: Work Out Your Best Legal Pathway

Depending on your situation, your options may include:

• a passing off claim
• a misleading or deceptive conduct claim (often under the Australian Consumer Law, and in some cases, relevant fair trading legislation)
• a trade mark infringement claim (if you have a registered trade mark)

You don't always need to choose just one. But you do want a coherent plan, because what you say in a letter (or online) can affect your position later.

Step 3: Consider A Lawyer-Drafted Letter Of Demand

A well-written letter can often resolve things early, without needing to go to court. It usually sets out:

• what conduct is causing confusion
• what laws may have been breached (e.g. passing off and/or misleading or deceptive conduct rules)
• what you want them to do (stop using the branding, remove content, change their name, etc.)
• a timeframe for compliance

This is one of those moments where DIY templates can backfire. If the other side pushes back, you'll want to know your position is solid.

Step 4: Think About Practical Outcomes (Not Just "Winning")

In many passing off disputes, the goal is to stop the confusion quickly. Practical outcomes might include:

• rebranding by the other business
• changing domain names/social handles
• removing misleading advertising
• a written undertaking not to repeat the conduct
• in some cases, compensation

What's "reasonable" depends on how close the brands are, how long it's been going on, and how much confusion exists.

Step 5: Escalate If You Need To

If the behaviour continues, escalation options may include court action. Depending on the claim and the evidence, potential remedies can include:

• injunctions (orders to stop the conduct)
• damages (compensation) where available and appropriate
• an account of profits (in some cases, requiring the other party to account for profits made through the conduct)
• corrective notices/advertising (in some circumstances and where ordered by a court)

Not every dispute needs to end up in court, but it's reassuring to know there are real enforcement tools available if the conduct is harming your business.

Because the "best" strategy depends on your evidence, your brand position, and what the other party is doing, it's worth getting tailored advice early rather than guessing.

Key Takeaways

• Passing off can protect your business when another trader misrepresents their goods or services in a way that causes customer confusion and harms your goodwill.
• Misleading conduct laws (including the Australian Consumer Law, and in some contexts, fair trading legislation with similar provisions that may be referred to as "section 9" depending on the jurisdiction) can also apply where conduct is misleading or deceptive (or likely to mislead or deceive), and they often overlap with passing off claims.
• To succeed in a passing off claim, you generally need to show goodwill/reputation, a misrepresentation creating confusion, and damage (or likely damage).
• Strong evidence matters, including screenshots, examples of customer confusion, and records showing your brand history and market presence.
• The best protection is proactive: check your name early, lock in key brand assets, and consider registering a trade mark where it's commercially important.
• If you suspect passing off, avoid knee-jerk responses and focus on a strategy that resolves confusion quickly and protects your position.

This article is general information only and does not constitute legal advice. If you need advice about your specific circumstances, you should speak with a lawyer.

If you'd like help protecting your brand, responding to a competitor's confusing conduct, or working out whether passing off or misleading conduct laws are the best pathway, you can contact Sprintlaw for a free, no-obligations chat.