Authored By: Chukwuemeka Anointing Godwin
University of Nigeria, Nsukka
Introduction
In general, passing off aims at protecting goodwill of businesses and at the same time preventing public misrepresentation. Traditionally, (before the advent of digital technology) goodwill of businesses was easily protected against public misrepresentation from competitive rivals—as physical products were prevailing and it was easier to notice when one mimicked another’s style of business.
In today’s digital century, businesses are done on cross borders—with less need of meeting physically. It becomes pertinent—how goodwills are protected, as it can be easily and swiftly misrepresented by online sellers and social media influencers who mask their identities in deceiving the perception of the consumer and without any traces of them.
This shift prompts critical questions: how effective is this principle of passing off over the protection of online goodwill? How do one prove goodwill and damage in a borderless digital world? And how do courts prefer liabilities on offenders? This article explores the above striking challenges in detail.
Classical Doctrine of Passing Off
The tort of passing off occurs when one party misleads the public into believing that their goods or services are associated with or originate from another party, potentially causing damage to the latter’s reputation or business. It can also be described as when a party, deliberately or unintentionally, offers its goods or services in a way that deceives the customer into believing they are doing business with another party.1
In establishing tort of passing off, the landmark case of Reckitt & Colman products Ltd v. Borden Inc (1990) 1 All E.R. 8372laid down a classical trinity that must be proven as its not actionable per se. There include; goodwill, misrepresentation and damage.
Classical trinity/elements of passing off
- Goodwill relates to the reputation of a business that attracts and retains customer loyalty. It’s what differentiates one’s business from another. As seen in the case of Jacob Fruitfield Food Group Limited v. United Biscuits (UK) Limited (2007) IEHC 3683 where the court held that the plaintiff had acquired the goodwill associated with the name and the defendant’s use of the same name had misled the public and caused damage to the plaintiff.
- The second in trinity is misrepresentation. This is where the defendant’s actions induces the public into believing his goods are associated with the plaintiff. Misrepresentation can arise in many ways:
- It can be when a defendant markets his product as that of the plaintiff.
- It can be the use of one’s own name.
- It can be the use of one’s own trademark.
- And finally can be by imitation of the getup or appearance of a product.
- The last in trinity is damage. Here, the plaintiff must show that he had suffered or likely to suffer harm/injury as a result from the defendant’s actions. This harm can manifest as a loss of sales, reputation or customers, or damage to the distinctiveness of the plaintiff’s brand. As seen in Reckitt & Colman products Ltd v. Borden Inc (1990) 1 AER 873.4
Digital Transformation and New Contexts for Passing Off
The advent of digital inventions opens up new breeds of passing off. Prior to this advent, public misrepresentation was a hard task but currently, with few online scrolls, consumers become victimized and legitimized business goodwills fall astray.
Some illegitimate sellers mask their identities under anonymity which poses threats to accountability. These modern challenges call for strong legal protections on business goodwill. While a lot of disparaging events are encompassed in the digital world, consumers are faced with difficulties of differentiating between fake/Counterfeit products and original ones.
All these become a difficult challenge to overcome and suppress because of the online algorithm that has already captured the misrepresentation. However, there are actual measures that subjugate those misrepresentations which are discussed below.
Social media influencers
With the innovation of social media platforms, sales are done globally and reach the end user with little stress and all are achieved with the help of social media influencers. These are people who advertise products to consumers online.
While there are advantages to businesses, it’s faced with some downsides. 1. Misleading endorsements are one of its downsides. As much as endorsement shows authenticity, some fail to disclose real partnership which ends up misleading the public. 2. False Affiliation. It’s not a headline anymore how some influencers claim they’re associates, brand partners, brand approved or official resellers of a company which in truth they’re not. These misleading practices create public confusion within consumers as they’re faced with difficulties of knowing which (original) is which (fake).
Fake online Accounts. Online frauds, with the aim of passing off—create misleading social accounts where they impersonate their identity as other influential businessmen who’ve built their goodwill.
User-generated content
It’s not a trending news that those masked impersonators create fake reviews about their mimicking products. They do such to retain fake authenticity and repost while innocent consumers fall for it.
A lot of jurisdictions have given judgements to this striking issue to mitigate its effects—a landmark case is the case of ACCC v Meriton Property Services Pty Ltd [2017] FCA 1308.5
Domain names & cybersquatting
Not as different as what has been buttressed above. Fake websites are created by online impersonators to mislead consumers and at the same time harm business goodwill/reputations.
Evidential and Legal Challenges in the Digital Age
The modern challenges are now—how are these classical elements proven? Does jurisdiction exists where there’s no offices or local customers? How’s goodwill gained on borderless businesses?
- Proving goodwill online is increasingly complex because reputation is no longer geographically confined. Brands often attract cross-border reputation without physical presence, raising questions about whether goodwill exists in jurisdictions where they have no offices or local customers. For online-only businesses, demonstrating a real and protectable customer base requires reliance on web analytics, user engagement records, or digital sales data—evidence that can be unreliable, easily manipulated, or incomplete.
- Proving misrepresentation in short-form content poses a second challenge. Much online communication now happens through emojis, hashtags, and short video formats, where meaning is ambiguous and context can be lost. Courts must interpret whether such brief signals genuinely mislead consumers or merely reflect online trends. Additionally, manipulated images, edited ads, and AI-generated visuals can blur the line between parody, advertisement, and deception, making attribution and intent harder to prove.
- Finally, proving damage is particularly difficult in digital environments. Harm can spread virally, reaching millions before a brand can respond. Yet linking specific financial or reputational losses to a particular misrepresentation is often speculative, especially when users encounter content through algorithmic feeds. The problem is aggravated by ephemeral posts that disappear—stories, vanishing messages, or deleted content—which deprive claimants of crucial evidence.
Legal and Regulatory Responses
As digital commerce expands, legal frameworks are evolving to address new risks, though often lagging behind technological realities. In Nigeria, the Federal Competition and Consumer Protection Act 2018 (FCCPA 2018) imposes duties on platforms, requiring takedown policies for counterfeit or misleading content, seller verification procedures, and transparent advertising practices to protect consumers. Relevant provisions include:
Sections 114 and 115 — right to clear information and price disclosure.6
Sections 116 and 125 — prohibition of misleading product labeling, trade descriptions, and deceptive advertising.7
Sections 117 and 118 — disclosure of product condition (new, reconditioned, or second-hand) and provision of transaction records.8
Section 124 — duty to ensure fair dealings in marketing and supply.9
Sections 130–131 and 135 — right to safe, quality goods and recall of hazardous products.10 Sections 146–155 — enforcement mechanisms, including remedies and regulatory oversight by the Federal Competition & Consumer Protection Commission (FCCPC).11 Statutory support complements platform obligations. Consumer protection laws safeguard buyers from unfair practices, while influencer disclosure regulations, inspired by international models such as the U.S. FTC Guidelines, ensure sponsored content is clearly labeled. Anti-counterfeit frameworks empower rights holders to act against imitation goods and deceptive branding. These duties and enforcement powers are further explained in legal commentary,12 and detailed guidance is provided in FCCPC regulations.13
Enforcement across borders presents further challenges. Mechanisms such as the UDRP allow recourse against cybersquatting, but differences in jurisdiction, procedural rules, and enforcement speed complicate resolution. Comparative foreign laws demonstrate proactive regulatory approaches, yet many legal systems—including Nigeria’s—struggle to keep pace with algorithm driven marketplaces, ephemeral content, and globalized commerce.
Conclusion & Recommendations
The doctrine of passing off remains highly relevant in the digital age, safeguarding consumers and brands against misrepresentation. However, the rise of anonymous sellers, algorithm-driven content, influencer marketing, and cross-border commerce has amplified enforcement challenges, making traditional legal approaches increasingly insufficient. Digital platforms often struggle to verify sellers, monitor viral content, and ensure advertising transparency, while jurisdictional gaps complicate redress for online misrepresentation.
To address these challenges, traditional passing-off doctrine must be modernized for digital realities. Platforms should implement robust verification, takedown, and reporting systems. Regulators need clearer, technology-specific rules for online advertising, influencer disclosures, and counterfeit control. International cooperation and harmonized frameworks, including dispute resolution mechanisms like the UDRP, can improve cross-border enforcement. By combining platform accountability, stronger regulations, and global coordination, the law can better protect consumers and preserve trust in the increasingly virtual marketplace.
Bibliography / References
Case Law
ACCC v Meriton Property Services Pty Ltd [2017] FCA 1308.
Jacob Fruitfield Food Group Limited v United Biscuits (UK) Limited [2007] IEHC 368. Reckitt & Colman Products Ltd v Borden Inc (1990) 1 AER 873.
Statutes
Federal Competition and Consumer Protection Act 2018 (Nigeria) ss 114–115. Federal Competition and Consumer Protection Act 2018 (Nigeria) ss 116, 125.
Federal Competition and Consumer Protection Act 2018 (Nigeria) ss 117–118. Federal Competition and Consumer Protection Act 2018 (Nigeria) s 124.
Federal Competition and Consumer Protection Act 2018 (Nigeria) ss 130–131, 135. Federal Competition and Consumer Protection Act 2018 (Nigeria) ss 146–155; see also ss 17–18 (FCCPC powers).
Consumer Protection Act 2018 (FCCPA 2018) (Nigeria).
Articles / Guidance
Federal Competition & Consumer Protection Commission, Guidelines and Regulations https://fccpc.gov.ng/resources-library/guidelines/ accessed 29 November 2025. LawKernel, Consumer Rights in Nigeria under the FCCPA 2018 https://lawkernel.ng/consumer rights-in-nigeria-under-the-fccpa-2018/ accessed 29 November 2025.
Lecture Material
Fochi Nwodo, ‘Unpublished Passing Off Notes’ (LLB Lecture Handout, Faculty of Law, UNN, 2025).
1 Fochi Nwodo, ‘Unpublished Passing Off Notes’ (LLB Lecture Handout, Faculty of Law, UNN, 2025).
2 Reckitt & Colman Products Ltd v Borden Inc (1990) 1 All E.R. 873. <https://preciouscaseapp.com/case.html?title=reckitt-colman-ltd-v-borden-inc-1990-1-all-er-873-5005> accessed 29 November 2025.
3 Jacob Fruitfield Food Group Limited v United Biscuits (UK) Limited [2007] IEHC 368.<https://ie.vlex.com/vid/jacob-fruitfield-food-group-793641365> accessed 29 November 2025.
4 Reckitt & Colman Products Ltd v Borden Inc (1990) 1 All E.R. 873. <https://preciouscaseapp.com/case.html?title=reckitt-colman-ltd-v-borden-inc-1990-1-all-er-873-5005> accessed 29 November 2025.
5 Australian Competition and Consumer Commission v Meriton Property Services Pty Ltd [2017] FCA 1305 (BarNet Jade)<https://jade.io/search/text=ACCC+v+Meriton+Property+Services+Pty+Ltd+%5B2017%5D+FCA+13 08> accessed 29 November 2025.
6 Federal Competition and Consumer Protection Act 2018 (Nigeria) ss 114–115.
7 Federal Competition and Consumer Protection Act 2018 (Nigeria) ss 116, 125.
8 Federal Competition and Consumer Protection Act 2018 (Nigeria) ss 117–118.
9 Federal Competition and Consumer Protection Act 2018 (Nigeria) s 124.
10 Federal Competition and Consumer Protection Act 2018 (Nigeria) ss 130–131, 135.
11 Federal Competition and Consumer Protection Act 2018 (Nigeria) ss 146–155; see also ss 17–18 (FCCPC powers).
12 LawKernel, Consumer Rights in Nigeria under the FCCPA 2018<https://lawkernel.ng/consumer-rights in-nigeria-under-the-fccpa-2018/> accessed 29 November 2025.
13 Federal Competition & Consumer Protection Commission, Guidelines and Regulations<https://fccpc.gov.ng/resources-library/guidelines/> accessed 29 November 2025.
