directly associate the plaintiff's wares with a distinctive selling, marketing or identifying feature and that purchasers rely on the feature to distinguish the plaintiff's wares from competitor's wares. At common law, the nature or form of a distinctive feature is virtually unrestricted: name, slogan, logo, smell, personality, shape, packaging, visual imagery, none of which necessarily have to be a trademark. At this stage of the analysis courts instead focus on the existence and strength of the reputation and the potential for cognitive associations between reputation, feature and wares. Passing off did not develop to protect monopolies in respect of products but of guises, get-ups, names and symbols which identify the distinctiveness of the source. Deception due to misrepresentation The second element, a misrepresentation that leads to confusion, need not arise from willful misrepresentation or deceit. It may also arise from careless or negligent misrepresentation. The analysis at this stage involves assessing visual and auditory resemblances between the two distinctive features, geographical overlap of reputations, and the degree to which the plaintiff and defendant directly compete in a market or trade. In Ciba-Geigy, the Supreme Court recognized that the evaluation of the likelihood of confusion ought to be in relation to ordinary purchasers, including all purchasers along the supply chain affected by the passing off, but that purchasers nearer to the source may be less likely to be confused. Actual or potential harm The third element requires a plaintiff show either actual loss or a real prospect of loss in order to obtain proper redress from a passing off claim. A plaintiff in a passing off action does not have to prove any customer was actually misled or any actual damages sustained; an attempt to mislead the public and potential damage to reputation or goodwill may suffice. The reputation and goodwill enjoyed by a brand or business are considered valuable commercial assets and if damaged may cause commercial and financial harm. Differences between common law and statutory passing off The statutory action under section 7 of the Trade-marks Act has been described by Chief Justice Bora Laskin of the Supreme Court of Canada as "a statutory statement of the common law action of passing off". However, although the statutory action shares the same elements as the common law action, there are important differences in the scope of protection, applicability, jurisdiction, and remedies available to plaintiffs depending on the choice of action.