What is Passing Off?
Passing off is a legal remedy available under common law to protect the goodwill and reputation of a business. It applies when someone misrepresents their goods or services as those of another, thereby misleading the public.
Passing off is especially important for protecting unregistered trademarks, where the brand owner cannot rely on statutory registration but must instead prove their rights through reputation and use.
Key Elements of Passing Off
To succeed in a passing off action, the claimant must prove three essential elements. These are often referred to as the “Classical Trinity”:
- Goodwill: The claimant must establish that their goods or services have acquired a reputation in the market. This reputation must be associated with a specific brand name, logo, packaging, or other distinctive mark.
- Misrepresentation: The defendant must have made a false representation to the public. This misrepresentation should lead or be likely to lead the public to believe that the defendant’s goods or services are associated with the claimant.
- Damage: The claimant must show that they have suffered or are likely to suffer damage due to the misrepresentation. This can include financial loss, harm to reputation, or loss of market share.
Legal Framework in India
In India, passing off is protected under Section 27(2) of the Trade Marks Act, 1999. This section clearly states that nothing in the Act shall affect the rights of action against any person for passing off goods or services as those of another.
Indian courts have consistently upheld the rights of businesses with well-established but unregistered trademarks. Remedies available include injunctions, damages, and delivery of infringing goods for destruction.
