Passing off ppt
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A trademark is defined as a mark capable of being represented graphically and distinguishing goods/services of one person from others. Common law protects trademarks through unfair competition claims for misrepresentation, such as when an unregistered mark is used on similar goods with intent to pass off goods as belonging to another. For a passing off claim, the plaintiff must prove the claimant's goodwill, a misrepresentation by the defendant, and damage to goodwill. Action for passing off under common law protects a trader's goodwill and is different from infringement actions which protect registered rights.
Passing off ppt
- 2. Defined in Section 2(1)(zb) Should be a mark capable of being represented graphically Capable of distinguishing the goods and services of one person from others Mark may include shape of goods, their packaging and combination of colors.
- 3. Common law procedure of protecting trademark Equated to unfair competition by misrepresentation Invoked in cases where the trademark for the goods is not registered Occurs when a person use the mark or getup belonging to the goods of another person on his own goods with the intention of passing off the goods as being those of that other person
- 4. In Erven Warnick Besloten vennotschap v J Townend & Sons (Hull) Ltd., states the essentials: a) A misrepresentation b) Made by a trader in the course of trade c) To ultimate or prospective consumers of goods d) Injure the business of another trader e) Causes actual damage to that trader
- 5. Plaintiff has to prove three things for claiming damages in action for passing off; a) Claimant’s Goodwill b) Misrepresentation c) Damage to Goodwill The basic test is whether a substantial no of persons have been or is likely to have been deceived by the defendant’s misrepresentation
- 6. Applied by the courts on the principles of English law Recognized in India through a) Trade Marks Act, 1999 b) Geographical Indications of Goods(Registration and Protection) Act, 1999 Provides claim for damages in case of unregistered trademark A different form of remedy than infringement(actionable by registered proprietor)
- 7. As common law remedy action for passing off can be taken in India when an attempt to pass off goods by misrepresentation has been made by the trader as those of another trader. It is quite different than action for infringement as it protects the goodwill of trader instead of his recognized rights.