What is ’Passing off’ under Trademark Rules?

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What is ’Passing off’ under Trademark Rules? Blog Image

Overview:

The Delhi High Court recently cancelled a trademark registration titled “Dolma Aunty Momos” in the name of one Mohammed Akram Khan, after Dolma Tsering moved court against him for using her trademark.

About ’Passing off’ under Trademark Rules

  • Passing off action basically refers to the unauthorised use of goods, services, and the goodwill attached to another person’s business, which would amount to misrepresentation.
  • The notion of Passing off in the Indian Trademarks Act, 1999, seeks to safeguard the goodwill associated with unregistered trademarks.
  • When the trademark has been registered by the owner and infringement happens, then it becomes a suit for infringement, but if the trademark has not been registered by the owner and infringement happens, then it becomes a case of passing off.
  • Passing off is a common law tort which occurs when a person sells his products as the goods of another, wherein the trademark owner can take legal action to remedy this violation.
  • While passing off is not defined under the Indian Trademarks Act 1999, Section 27 recognizes the common law rights of a Trademark owner wherein the owner can initiate legal proceedings against any person for passing off goods or services as the goods of another person or as services provided by another person.
  • Passing off occurs when there is illegal use of a trademark or trade name in such a way that the public is misled into believing that the products or services supplied by one party are genuinely those of another.
    • This misrepresentation can harm the goodwill and reputation of the legitimate owner of the trademark. 
  • Establishing passing off can be difficult since claimants must demonstrate the possibility of public misunderstanding about the origin of the products or services.
  • The essential question in passing off cases is whether the defendant’s behavior is such that it causes uncertainty and possibly harms the plaintiff’s goodwill.
  • Passing off encompasses a larger variety of commercial operations, including trade, business, and non-business initiatives, in addition to commodities and services,

Q1) What is a patent?

A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.

Source: Why Delhi’s Dolma Aunty Momos challenged the use of her trade mark, what the law says