Under the Trade Marks Act, 1999, the action of "passing

Solution

Passing off is a common law tort that protects unregistered trademarks by preventing a person from selling their goods or services under a false representation that they are those of another trader. While the Trade Marks Act, 1999 does not define "passing off," Section 27(2) expressly preserves the right to bring an action for passing off, stating that nothing in the Act shall affect the right to take or continue an action against any person for passing off goods or services as those of another. The three classic elements of passing off known as the "Classic Trinity" are: (i) Goodwill the claimant must have an established reputation; (ii) Misrepresentation the defendant must have made a false representation likely to deceive the public; and (iii) Damage actual or likely damage to the claimant's goodwill must result. The Supreme Court in Syed Mohideen v. P. Sulochana Bai (2016) held that a passing off action can even lie against a registered proprietor of a trademark, affirming that prior use and goodwill can trump registration.