“This paper seeks a consistent view of the baseline for the protection of goodwill under the English law of passing off across diverse applications within its jurisdiction. In cases involving pre-sale advertising which introduces the advertised goods to the marketplace, the law has shown a potential for protecting goodwill before any sale occurs and thus before any customer base is established. In cases involving professional and trade governing and promoting bodies and charities, the law has long protected the goodwill of claimants which may not have a trade customer base. However, while it is not disputed that traders need to have goodwill within a jurisdiction before the law of passing off will protect their goodwill there, traders whose goods and/or services (collectively ‘goods’) may be known in England or Wales, but who operate no business there, must have a customer base there to establish goodwill (often called ‘extraterritorial goodwill’) within the jurisdiction. A 2015 UK Supreme Court decision affirms this stance. It has not proven uncontroversial …”
Catherine W Ng, ‘Goodwill without borders’, 134 Law Quarterly Review 285 (April 2018).