Passing off and Infringement of trademarks

INTRODUCTION:

The trademark is an intangible asset for business. It represents the goodwill of business which is earned over a period of several years. Thus it becomes utmost important to protect the most vulnerable intangible asset of business. Now, the questions arises as to what are the legal ways through which we can stop others misusing our trademark or how we can stop others duplicating our goods or services. Here comes a role of trademark infringement or trademark passing off. Let us see in this article the basic difference between trademark infringement and trademark passing off. And what are the circumstances where we can take the help of above legal ways.

What is trademark infringement?

As per section 29(1) of the trademarks act “A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark”

In simple words, we can say that if a person who is not the actual owner of the registered trademarks and still continue to use it and continue to sell the goods or services under the said trademark as if his own,then we can say that such acts amounts to the trademark infringement.

What is trademark passing off?

Trade mark Act, 1999 does not specifically defines passing off but there are certain law judgments that enables us to draw its meaning as to whether the it shall be considered as trademark infringement or trademark passing off. The general dictionary meaning of passing off says that it’s a kind of tort. The general rule says that no one is allowed to represent other person’s goods to be his or her. The act enables those businesses who sell the goods or services in India without having registered trademark in their name to file a notice of passing off drawing attention of authorities for seeking protection against the act of trademark passing off. Thus, to serve the notice of passing off, a person need not to be the registered owner of trademark. The concept of trademark passing of general in nature and it is much wider than that of the concept of trademark infringement.

Let us see the basic different between the trademark infringement and trademark passing off.

Conclusion

The above explanation enables the reader to draw the difference between the infringement and passing off. The difference is bit minor but much crucial in the nature if the brand is prominently popular in the market.

OC helps you to serve the notice of infringement as well as passing off for protection of your brand. If you have received such notices, we can help you to reply them accordingly.