I have experience of acting for clients on both sides of passing off and copyright infringement claims. There was clearly no passing off here in the way you te

I have experience of acting for clients on both sides of passing off and copyright infringement claims. There was clearly no passing off here in the way you tend to frame a passing off action as per Warnink (in the UK at least). What misrepresentation are you referring to? The defendant was a tea company looking to use an image, the claimant was a gift company so it wasn't a case of a customer going to the tea company when they meant to go to the gift company. This is the misrepresentation which generally has to be in place for a passing off action to be successful. Copyright infringement does not just cover identical images but substantial reproductions. The correct question is whether the copy was a substantial reproduction or whether it simply borrowed elements from the original, that is to say whether the line between inspiration and copying had been crossed. \edit I would also add that in general passing off actions are far harder to prove than copyright infringement. To my mind, if a copyright infringement action is available this would always be preferable to bringing a passing off action.