UP (Movement For Change) Vrs New Patriotic Party (NPP): The Tort Of Passing Off In The Use Of Brand Name

By Nana Kwasi Asuman-Frimpong

1. INTRODUCTION
2. This write-up analyses the use of UP by the Movement for Change as the name of its new party and whether that constitutes passing off on the reputation and goodwill of the New Patriotic Party (NPP), and whether the NPP suffers, or is likely to suffer, any damage from such use.
3. It employs statutes and case law to support its analysis without making any judgment on whether the actions of the Movement for Change amount to passing off.
4. It concludes that, as passing off is an economic tort, it will be interesting to see how the courts might resolve the issues by extending its application to political party activities.
5. The write-up is divided into five parts: Introduction, facts, rules and principles, issues, and discussion/analysis.
6. FACTS
7. On 16 October 2025, Mr Alan John Kwadwo Kyerematen launched the United Party (UP), transforming his Movement for Change into a political party. The group later indicated that the party would be known as United Party Plus (UP Plus), although all public insignia of the party so far do not bear the “Plus” suffix.
8. The party’s Chairman, Abubakar Saddique Boniface, outlined the vision behind UP Plus, describing it as a revitalised force for change intended to “resurrect the old bones in the agent who knows much about UP,” thereby signalling a link with the old United Party (UP), the antecedent party of the New Patriotic Party (NPP).
9. The launch has since sparked national debate, with an NPP Member of Parliament threatening legal action to prevent the Movement for Change from using the name UP.
10. RULES AND PRINCIPLES OF LAW
11. The tort of passing off is a common law tort that protects against unfair competition by preventing one business from misrepresenting its goods or services as those of another. The law allows traders to protect their business goodwill even without formal trademark registration.
12. This common law tort has been given statutory backing in the Ghanaian legal system. The Trademarks Act 664 passed in 2004 and amended by the Trademarks Amendment Act, 2014 (Act 876) provides for trademark protection, conferring exclusive rights to the use of a trademark by the holder. Section 9(1) of Act 664 prohibits any other person other than a registered owner of a trademark from using the mark in relation to goods or services for which the trademark was registered without the agreement of the owner. Subsection 3 expressly prohibits a person from knowingly infringing the rights of the owner of a registered trademark by using a trademark in relation to goods or services for which the trademark was registered without the consent of the owner.
13. But even before the passage of the Trademarks Act in 2004, Ghana had in 2000, passed the Protection Against Unfair Competition Act, 2000 (Act 589) to deal with causing confusion with respect to another’s enterprise or its activities. Section 1 of Act 589 provides that an act or a practice, in the course of industrial or commercial activities, that causes or is likely to cause confusion with respect to another person’s enterprise or its activities, in particular, the products or services offered by that enterprise, constitutes an act of unfair competition.
14. Section 2 of Act 589 explains further that confusion may be caused inter alia with respect to a trademark, whether registered or not, or a trade name. What Act 589 therefore does is to provide that a person cannot use the trade name of another, whether such is registered or not, taking away the element of registration and emphasizing the element of confusion.
15. And this is very key because confusion is central to the tort of passing off. This is because the tort of passing off deals with acts calculated to injure the business or goodwill of another trader. And one of the means to injure the business or goodwill of another is the creation of confusion.
16. But the Ghanaian position even goes beyond just the creation of confusion with Section 2 of Act 589 explaining that an act or a practice … that damages or is likely to damage the goodwill or reputation of another person’s enterprise or its activities constitutes an act of unfair competition, whether or not the act or practice causes confusion.
17. Thus, a company can object to a registered company’s name on the ground that it is the same as a name in which that person has goodwill or that the name is likely to cause confusion and mislead the public into thinking that there is a connection between the company and the complainant – See Fruit Basket Ltd Vs. I-Shop Ltd [2017] DLHC 6282.

Elements of Passing Off

15. To succeed on the claim of passing off, Lord Diplock in Erven Warnink B. V. and Another v. J. Townend & Sons (Hull) Ltd and Another (1979) AC 731 gave the five characteristics which must be present in order to create a valid cause of action for passing off. These are:
    (1) a misrepresentation, (2) made by a trader in the course of trade, (3) to prospective customers of his or ultimate consumers of goods or services supplied by him, (4) which is calculated to injure the business or goodwill of another trader, and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought.
16. These characteristics crystallised into the three elements of passing off propounded by Lord Oliver in Reckitt & Coleman Products Ltd v. Borden Inc (No. 3) 1990 1 WLR 491, commonly called the Jif Lemon case, which established three elements:

1. Establishment of a goodwill or reputation attached to the trademark in question such that it is recognised by the public as distinctive specifically to the plaintiff.
2. Demonstrate a misrepresentation by the Defendant to the public (whether or not intentional) leading or likely to lead the public to believe that the goods or services offered by him are the goods and services of the Plaintiff.
3. Demonstrate that he suffers or that he is likely to suffer damage by reason of the erroneous belief engendered by the Defendant’s representation.

Thus, the classic trinity of passing off is goodwill, reputation, and the likelihood of damage.

Goodwill

17. Goodwill has been defined in IRC v. Muller’s Margarine (1901) AC 217 @ 223 as “the benefit and advantage of the good name, reputation and connection of a business. It is the attractive force which brings in customers. It is the one thing that distinguishes an old-established business from a new business at its first start.”
18. In Kerly’s Law on Trade Marks and Trade Names (13th Ed) quoted with approval in the Fruit Basket Ltd Vs. I-Shop Ltd [2017] DLHC 6282, the authors noted that the name under which a business trades will almost always be a trademark. It will also have attached to it a goodwill that the law will protect. An action for passing off will then lie wherever the Defendant Company’s name or intended name is calculated to deceive and so to divert business from the Plaintiff.

Reputation

19. Reputation is the brand name recognition a company achieves in the minds of the public. It goes beyond mere confusion to what the public associates the brand with. So the learned authors of Kerly’s Law on Trade Marks and Trade Names (13th Ed) explained that where a Claimant’s name is descriptive of its business, the mere fact that the Defendant adopts a name containing the same descriptive words will not establish any case of passing off as a trader cannot monopolise a mere description unless it has acquired a secondary meaning. Secondary meaning is acquired through continuous use of the name such that the public associates the name with the goods and services provided by the claimant.
20. In HFC Bank Plc v. Midland Bank Plc (2000) FSR 176, the claimant objected to the use by the Defendant of the name HSBC. It was confirmed that evidence of confusion alone did not constitute passing off. What was required was that the claimant should show that it had achieved brand name recognition.

Likelihood of Damage

21. A claimant must prove that he suffers or that he is likely to suffer damage by reason of the erroneous belief engendered by the Defendant’s representation. In Fruit Basket Ltd Vs. I-Shop Ltd [2017] DLHC 6282, the court stated that confusion alone did not constitute passing off. What was required was that the claimant should show that it had achieved brand name recognition and that by the use of that brand, he suffers some damage or is likely to suffer some damage.
22. In Fruit Basket (supra), the Plaintiff, operating under the name I-Shop, claimed to have gained a strong market reputation and maintained a website, ishop.com.gh, to promote its products. He alleged that the Defendant, operating as I-Shop Ghana Ltd with a similar website (ishop.ghana.com), was selling similar products and misleading customers, claiming the Defendant was passing off its business as that of the Plaintiff to gain unfair advantage. Jennifer A. Dodoo JA, in dismissing the case, explained that the Plaintiff had been unable to lead evidence in proof of the fact that it had goodwill in the name ISHOP. It had also not been able to establish that the Defendant had carried on its business in a way that damaged or was likely to damage its reputation or that the Defendant had caused confusion in carrying on its business in the corporate name of ISHOP Ghana Ltd.
23. Thus, FOR THE CLAIM OF PASSING OFF TO SUCCEED, THERE SHOULD BE EVIDENCE THAT THE PLAINTIFF HAS A REPUTATION ASSOCIATED WITH THE NAME, AND THERE IS EQUALLY EVIDENCE OF THE GOODWILL, WHICH IS A CONDITION PRECEDENT FOR PASSING OFF, AND THAT THE PLAINTIFF IS LIKELY TO SUFFER SOME DAMAGE.
24. ISSUES

The issues to glean from the current facts are:

1. Whether or not the NPP has gained a reputation in Ghana’s political landscape for the use of the name United Party (UP).
2. Whether or not the use of UP by the Movement for Change affects the goodwill gained by the NPP.
3. Whether or not, by the use of UP by the Movement for Change, the New Patriotic Party suffers or is likely to suffer any damage.

5. APPLICATION AND ANALYSIS

Issue One (Whether or not the NPP has gained reputation in Ghana’s political landscape for the use of the name United Party (UP).

24. The New Patriotic Party traces its history to the formation of the United Gold Coast Convention (UGCC). The party has metamorphosed over the years from the UGCC to the current NPP. Along the line, the party has taken names such as United Party (UP) in the First Republic, Progress Party (PP) in the Second Republic, the Popular Front Party (PFP) in the Third Republic and the New Patriotic Party (NPP) in the Fourth Republic. In between, some other parties have emerged from the tradition, including the United National Convention (UNC) in the Third Republic.
25. However, probably the most pronounced of all the antecedent names is the United Party, which amalgamated different political parties and gave the party its historic tradition — the “Danquah-Dombo-Busia” tradition. Thus, over the years, the party has come to be associated with the UP tradition.
26. What is unclear is whether the party has registered the name UP as a trademark, as provided by the Trademarks Act, 2004 (Act 664) as amended by the Trademarks (Amendment) Act, 2014 (Act 876), conferring exclusive rights to the use of UP by the NPP. However, the lack of registration in itself may not be fatal to exclusive use, as Section 1 of the Protection Against Unfair Competition Act, 2000 (Act 589) provides against an act or practice that causes or is likely to cause confusion with respect to another person’s enterprise or its activities.
27. Thus, what needs to be proven is whether, by the use of UP by the Movement for Change, it is likely to cause confusion in the minds of the public. It must also be established that the NPP has achieved brand name recognition in the minds of the public such that, by the mention of UP, every political observer first thinks of the NPP rather than the Movement for Change – See Kerly’s Law on Trade Marks and Trade Names (13th Ed.). While the name United Party “UP” comprises ordinary English words that can be adopted by anyone, the NPP can indeed monopolise the name if it can be proven that the name has acquired a secondary meaning through continuous use, such that the public associates it with the NPP.

Issue Two (Whether or not the use of UP by the Movement for Change affects the goodwill gained by the NPP.)

28. Goodwill has been defined in IRC v. Muller’s Margarine (1901) AC 217 @ 223 as “the benefit and advantage of the good name, reputation and connection of a business. It is the attractive force which brings in customers. It is the one thing that distinguishes an old-established business from a new business at its first start.” The NPP prides itself on the Danquah-Dombo-Busia tradition. This pride is directly linked to the formation of the UP which was a result of the collaboration between several political parties, including the Northern People’s Party (NPP) led by S.D. Dombo.
29. History has it that the parties which merged into the UP included Danquah’s Ghana Congress Party (GCP), the National Liberation Movement (NLM), the Northern People’s Party (NPP) led by S.D. Dombo, the Togoland Congress Party (TCP), the Muslim Association Party (MAP), and the Anlo People’s Party (APP), among others with Dr Busia becoming the parliamentary leader of the party.
30. Thus, as indicated in IRC v. Muller, the present-day NPP directly benefits from the advantages and connection with the UP, becoming its attractive force and distinguishing it from other political movements and traditions in Ghana.

Issue Three (Whether or not, by the use of UP by the Movement for Change, the New Patriotic Party suffers or is likely to suffer any damage.)

31. In the Fruit Basket Ltd (supra), it was held that for a claim of passing off to succeed, there should be evidence that the plaintiff has a reputation associated with the name and that there is equally evidence of goodwill, which is a condition precedent for passing off, and that the plaintiff is likely to suffer some damage. Jennifer A. Dodoo JA explained that the plaintiff has to lead evidence in proof of the fact that it had goodwill in the name and establish that the defendant carried on its business in a way that damages or is likely to damage its reputation, or that the defendant caused confusion in carrying on its business in the name.
32. The onus is thus on the NPP to prove that the UP+ engages in actions intended to damage the NPP’s reputation. Reputation in this sense has been explained as acquiring secondary meaning for the use of the words through continuous use of the name, such that the public associates the name UP with the NPP – See Kerly’s Law on Trade Marks and Trade Names (13th Ed.).
33. Thus, any action by the Movement for Change (UP+) that seeks to undermine this long-held association of the name UP with the NPP, leading to confusion in the minds of the public, affecting the party’s electoral fortunes, could constitute damage suffered by the NPP.
34. CONCLUSION
35. From the above discussion, it is the considered view of the writer that the use of the name United Party (UP) and its associated vision could constitute passing off on the goodwill and reputation of the NPP if the NPP can prove actual or likely damage it stands to suffer in terms of name recognition, confusion in the minds of voters, and potential electoral outcomes.
36. As the tort of passing off is an economic tort, it will be interesting to see how the courts might extend its application to cover political party activities, which inherently possess economic implications.

Disclaimer: This write-up is intended solely to enrich public discourse on the ongoing debate and is not to be taken as legal advice or political strategy.

The writer is a student at the Ghana School of Law and is also pursuing a Master of Laws in Competition and Consumer Protection Law.

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