Context:
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.
Relevance:
GS III: Indian Economy
About Passing off under Trademark
Passing off is a legal concept under trademark law that aims to protect the goodwill associated with unregistered trademarks. Here are the key points about passing off under trademark rules:
- Definition: Passing off occurs when one party uses goods, services, or the goodwill attached to another person’s business without authorization, leading to misrepresentation to the public.
- Legal Basis: While passing off is not explicitly defined in the Indian Trademarks Act, 1999, it is recognized under common law. Section 27 of the Act acknowledges the common law rights of a trademark owner to take legal action against passing off.
- Distinction from Infringement: Passing off differs from trademark infringement in that it applies to unregistered trademarks. When a registered trademark is infringed, it constitutes a suit for infringement, whereas passing off applies when the trademark is unregistered.
- Elements of Passing Off: To establish passing off, the claimant must demonstrate that the defendant’s actions have led to public misunderstanding about the origin of the products or services, potentially harming the goodwill and reputation of the legitimate trademark owner.
- Legal Proceedings: Trademark owners can initiate legal proceedings against individuals or entities engaging in passing off activities. The essential question in passing off cases is whether the defendant’s behavior causes uncertainty and potential harm to the plaintiff’s goodwill.
- Challenges in Establishing Passing Off: Establishing passing off can be challenging, as claimants must prove the likelihood of public confusion regarding the origin of goods or services. This requires evidence of misrepresentation and potential harm to the plaintiff’s goodwill.
- Scope of Passing Off: Passing off covers a wide range of commercial activities, including trade, business, and non-business initiatives. It extends to both goods and services, emphasizing the protection of goodwill and reputation in the marketplace.
-Source: Indian Express
