The Law of Passing Off

When one trader misrepresents goods or services as being the goods and services of another; or tries to say that their goods or services have some association or connection with another when this is not true this is known as Passing Off.

This is a function of the common law, meaning it is not vested in a statutory provision but is developed by case law and precedent. It is an arm of tort, and useful for any small-medium size business to have some knowledge about.

The law of passing is engineered to stop *MISREPRESENTATION* in the course of trade to the public; preventing someone for claiming that there is some sort of association between the businesses of two traders. It's not so straight forward though.

It takes more than two businesses that sell the same type of cuisine. In law school they teach you about the "Classic Trinity". These are the elements required for a passing off action to succeed:

1. Goodwill owned by trader
2.Misrepresentation
3. Damage to goodwill

All three elements must be proven. For clarity, "goodwill" means "inherent value". So let's break down the burrito bowl bullshit. The inherent value of Big Mexi is what? They sell mexican food, they were one of the first to bring the Chipotle (ironic nuance) style restaurant here

There is arguably some goodwill owned by the trader, but even if there was, where is the misrepresentation?

"Since [redacted] is closed" sounds like a recognition of opportunity."I run a business, I see an opportunity, I am going to capitalize on it. IMO no harm there.

Neither party in the taco salad toss up owns the rights to mexican food, if that were the case - a certain franchise in the US would have been up [redacted]'s ass a long time ago. They have no registered rights to their food as far as I am aware. I am open to being corrected.

Misrepresentation necessarily requires a false statement of fact, or an other conscious and deliberate act to gain business by deceit, in this context.

Again, in my opinion I don't see anything deceitful about Home Tortilla Mami's advertising, or delivery.

She acknowledges the other trader, states a fact (that they are closed) and offered a service which she clearly (in my opinion) intended to be distinguished from Big Mexi. There is nothing about that which screams misrepresentation, or even seems actionable.

If you want to read on the subject for yourself, start with

Erven Warnink B.V. v. J. Townend & Sons (Hull) Ltd., [1979] AC 731 which attorneys know as The Advocaat Case. - this will deepen your understanding of the "classic trinity"

...and then let google be your guide.