Legal Protection Of Goodwill

The law of passing off protects traders from a form of misrepresentation that harms their goodwill, and consumers from the market distortion that may result. This carefully-crafted work seeks to delineate two intertwined aspects of goodwill: substantive and structural goodwill. It argues that the law of passing off should focus on protecting structural goodwill, and that this in turn allows traders’ authentic voices to help shape the substantive goodwill to attract custom for them in the marketplace.

A comprehensive study of the legal issues surrounding the concept of goodwill in business, including its valuation, infringement, protection, and transfer. This work has been selected by scholars as being culturally important, and is part of the knowledge base of civilization as we know it. This work is in the "public domain in the United States of America, and possibly other nations. Within the United States, you may freely copy and distribute this work, as no entity (individual or corporate) has a copyright on the body of the work. Scholars believe, and we concur, that this work is important enough to be preserved, reproduced, and made generally available to the public. We appreciate your support of the preservation process, and thank you for being an important part of keeping this knowledge alive and relevant.

Excerpt from Commercial Goodwill: Its History, Value, and Treatment in Accounts Commercial goodwill is legal property, and consists wholly of rights which may or may not have present exchangeable value. In its true economic meaning the term 44 commercial goodwill" covers a vast field of rights growing out of all kinds of past effort in seeking profit, increase of value, or other advantage which may be capable of future profitable development. These rights are legally protected under various names, both by statute law and by common law, for the use and benefit of the owner. Commercial goodwill may include any or all such property as business connection associated with names, persons and places of business, trade marks, patents and designs, copyright, and the right to exercise monopolies. The exchangeable value of goodwill is based on anticipation, and the character of the anticipation always is that the owner of any of these rights will earn future profit, increase of value, or other advantage in excess of the normal reward of any capital and human effort (which includes labour) needed to carry on the undertaking. Goodwill is generally assumed to possess present exchangeable value, and it often possesses great present exchangeable value. The question whether or not these rights, growing out of past effort in profit-seeking, possess present exchangeable value, does not concern the legislature. About the Publisher Forgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.com This book is a reproduction of an important historical work. Forgotten Books uses state-of-the-art technology to digitally reconstruct the work, preserving the original format whilst repairing imperfections present in the aged copy. In rare cases, an imperfection in the original, such as a blemish or missing page, may be replicated in our edition. We do, however, repair the vast majority of imperfections successfully; any imperfections that remain are intentionally left to preserve the state of such historical works.

This paper addresses the topic of goodwill and the possibility of achieving a synthesis between its legal and accounting concepts. The genesis for this topic was the assertion by the High Court in FCT v. Murry that the legal and accounting concepts of goodwill were different to the extent that a synthesis between the concepts could not be achieved. The approach taken involves an examination of the evolution, nature and treatment of goodwill in both the legal and accounting contexts. The major focus is on the legal concept, but significant attention is also given to the accounting concept to enable an examination of the possibility of a synthesis between the two. Thus chapters 2-12 deal largely with the legal concept of goodwill and chapters 13-14 deal with the accounting concept. Chapter 15 contains the final analysis and conclusions.Chapter 1 introduces the topic and addresses a range of definitions of goodwill, both legal and accounting definitions. Chapter 2 examines the evolution of goodwill as a commercial legal concept dating back to early references in the sixteenth century. Chapter 3 carries on the examination of the legal concept from the point of view of it major elements and sources. Chapter 4 deals with important issues which go to the heart of our understanding of legal goodwill. The essential issues concern the concept of goodwill as one whole item of property, inseparably attached to a business but separate from its sources. Chapters 5-12 examine the concept in a range of specific legal contexts in order to determine what they add to our understanding and also to determine how the essential nature of legal goodwill holds up in these various contexts. Chapter 5 deals with goodwill in the context of partnerships. Much of the case law involving goodwill in this context arose in the nineteenth century in relation to the termination of partnerships. Chapter 6 examines goodwill in relation to restrictive covenants designed to protect the goodwill of a business. The history of the law of restrictive covenants can be traced back to the fifteenth century, where an incipient notion of goodwill may be seen to be emerging. Chapter 7 examines goodwill in the context of stamp duties, a tax with a long pedigree stretching back to the late seventeenth century. Chapter 8 examines the authorities concerning the nature and treatment of goodwill in the contexts of licensing, leasing and franchising. In chapter 9 the legal concept of goodwill is examined in the broad-ranging context of the tort of passing-off. Goodwill plays a central part in the modern tort as the element of business to be protected from damage by the act of passing-off.As discussed in chapter 10, the field of compensation law presents certain treatments of goodwill which strictly run counter to its legal nature, particularly in respect of counting goodwill as part of land in calculating an amount of compensation. However, as explained in this chapter, this is no more than a deeming device for the specific purposes of calculating compensation and thus should not be taken to deviate from the normal concept of goodwill. Chapter 11 deals with goodwill in a number of tax contexts not covered elsewhere in this paper. The relationship between tax and goodwill has been an uneasy one with a degree of friction between the concept of goodwill and its tax treatment. The last of the chapters focussing on legal goodwill, chapter 12, addresses issues concerning valuation in the legal context.Chapters 13 and 14 deal with the accounting concept of goodwill. Chapter 13 examines the origin and development of goodwill. It plots the evolution of accounting goodwill from its recognizable beginnings in the 1880s to WWII. Chapter 14 carries on with the examination of accounting goodwill in the modern period, identified as the period after WWII with an emphasis on the time from the early 1980s. As noted in the conclusion to that chapter, the definition, valuation and treatment of accounting goodwill have changed little in substance from the earlier periods pre-WWII.The conclusion in chapter 15 is that goodwill is essentially the same concept in both law and accounting, but a compound concept comprising different facets which apply in different contexts. Therefore, the need strictly to determine a synthesis is rendered redundant by this concept of goodwill.

US Intellectual Property Law and Policy provides a selection of well-written essays critically examining the direction of US IP law. Simon Teng, Journal of Intellectual Property Law and Practice . . . an interesting, informative, and enjoyable book. It may be of special interest to Australian students, scholars and practitioners seeking to undertake comparative analysis between Australian and US IP law, particularly in view of the recent Free Trade Agreement. Louise Buckingham, Copyright Reporter The challenging and insightful essays in US Intellectual Property Law and Policy, a compilation by six of the best, if not the best, professors of intellectual property law in the United States . John A. Tessensohn, European Intellectual Property Review This book identifies and addresses the key principles and policies with regard to the protection of intellectual property in the United States. A select group of highly-regarded contributors illustrate several themes which are recurrent in the many debates concerning US law and policy on intellectual property. The need for a constant expansion of protectable subject matter is critically analyzed, especially in relation to trade mark and patent laws. The chapters within the book discuss a question of critical jurisprudential importance: have the legislature and the judiciary taken sufficient consideration of the different economic and constitutional rationales of intellectual property protection when extending the scope of intellectual property protection? A tentative agenda as to the future direction for both Congress and the courts to adopt, in light of the new technological changes which have affected all areas of intellectual property protection equally, is also suggested. Policymakers will find this book of great interest as will academics and students of intellectual property law and international law.

"In this third edition, "The Law of Passing-off" gains a new subtitle and two major extensions to its coverage. Though the term 'passing-off' is familiar enough, it is something of a misnomer. It understates the full extent and importance of the tort, and baffles all but specialists. In the Civil law, 'unfair competition' has long been recognised as a subject of major importance in its own right, and even in England the phrase is increasingly accepted either as a synonym for passing-off, or as an all-embracing term for that and related causes of action, of which the natural counterpart to passing-off is injurious falsehood. This edition is therefore better described as the "Law of Unfair Competition by Misrepresentation." The present edition includes for the first time a chapter on the international law of unfair competition under the Paris Convention for the Protection of Industrial Property, with a detailed account of the drafting and negotiating history of Article 10bis of the latter. As related but logically separated developments, there are new sections on the possible impact of the European Convention on Human Rights, the WTO TRIPs Agreement, and on unfair competition in private international law. Although the Paris Convention does not directly affect day-to-day practice it does provide the only international consensus against which national laws of unfair competition may be compared, and any future efforts at harmonisation by the European Community can hardly fail to take it as their starting point...The present edition is to some extent pre-emptive of what can be expected to come." -- p. v.

This book will be of interest for all jurists doing research and working practically in intellectual property law and international economic law. It should be an element of the base stock for every law school library and specialized law firm. This title is available as Open Access.