In Canada, passing off is both a common law tort and a statutory cause of action under the Canadian Trade-marks Act referring to the deceptive representation or marketing of goods or services by competitors in a manner that confuses consumers. The law of passing off protects the goodwill of businesses by preventing competitors from passing off their goods as those of another. The protection afforded by the law of passing off protects only the association between a product and its producer and not to the product itself - primarily, it protects a producer's investment in making a product or service distinguishable in the marketplace through the use of distinctive features such as marks, letters, advertising material or slogans, colours, and sounds. Basis of passing off claims Common law tort of passing off As a common law action, the tort of passing off was developed by courts to protect a plaintiff from harm to their business caused by unfair competition through deceptive marketing or representation. It also protects the public at large by enabling consumers to make informed choices about goods available on the market. Statutory action under the Trade-marks Act Section 7(b) and 7(c) of the Trade-marks Act provides a statutory cause of action parallel to the common law tort of passing off. It can be asserted by a plaintiff whether or not a mark in question has been registered. In particular, the Act states: 7. No person shall ... (b) direct public attention to his wares, services or business in such a way as to cause or be likely to cause confusion in Canada, at the time he commenced so to direct attention to them, between his wares, services or business and the wares, services or business of another; (c) pass off other wares or services as and for those ordered or requested; Elements of passing off Despite their different origins, both the common law and statutory action for passing off share the same general legal analysis. The Supreme Court of Canada held in Ciba-Geigy Canada Ltd v Apotex Inc that there are three necessary elements in a passing off action: The existence of goodwill, Deception of the public due to a misrepresentation, and Actual or potential harm to the plaintiff Existence of goodwill The first element requires a plaintiff establish that its wares, services or business enjoy a reputation or goodwill in the minds of consumers, that consumers