What is passing off action in trademark?
Meaning of Passing-Off “If a person sells his goods as the goods of another” then the trademark owner can take action as this becomes a case of passing off. Passing off is used to protect or safeguard the goodwill attached to an unregistered trademark.
What is the legal meaning of passing off?
Passing off is described as an unfair competition by misrepresentation or literally speaking “the cause of confusion or deception”. The Duhaime’s Legal Dictionary, defines Passing off as making some false representation likely to induce a person to believe that the goods or services are those of another.
What is the test for passing off?
Passing off occurs where a third party uses an (unregistered) trade mark without the consent of the owner of that trade mark.
What pass off example?
A simple example is the use of the claiming party’s unregistered trademark on another’s goods, although the tort of passing off also encompasses numerous other misrepresentations. Notably, any misrepresentation does not need to have been deliberate and actual confusion having occurred does not need to be shown.
What is the difference between trademark and passing off?
Trademark provides protection to registered goods and services whereas Passing Off provides protection to unregistered goods and services. This is one of the most important differences between Passing Off and trademark infringement.
What is the difference between passing off action and infringement?
In an action for infringement, the Plaintiff on account of it being a registered trade mark in dispute claims to have an exclusive right to use the mark concerning those goods. However, a passing off by a person of his goods as those of another, in essence, is an action of deceit.
What are the elements of the tort of passing off?
In a passing off action, the plaintiff must prove that there is a similarity in the trade names or marks and that the defendant is passing off his goods as those of the plaintiff’s [11] . Remedies could include injunction or damages or both. Damage or likelihood of damage form the core all passing off actions.
Is passing off a criminal Offence?
Criminal Offence? It’s not a criminal offence to pass off one business as another. It gives rise to civil liability, primarily for damages, which is a civil remedy.
How do you prove damages passing off?
The final element required to prove a case of passing off is that actual damage has taken place, or is likely to take place as a result of an incorrect belief resulting from the defendant’s misrepresentation that the source of their goods is the same as the source of the plaintiff’s goods4.
How infringement is different from passing off?
Is passing off a crime?
It’s not a criminal offence to pass off one business as another. It gives rise to civil liability, primarily for damages, which is a civil remedy. Businesses passing off are also likely to be on the receiving end of an injunction to halt further passing off, as was the case with Mr Montgomery in the example above.
What things are to be proved by a successful claimant of passing off?
The claimant must show that there is a strong likelihood of or actual deception or confusion in the mind of a consumer. The classic example is the “Jif lemon” case. Reckit & Colman had a long standing lemon juice product which was sold in a container shaped like lemon.
How is infringement of a trademark different from passing off?
The other difference between Passing Off and trademark infringement is that in Passing off it is not essential for the defendant to use the trademark of the plaintiff to bring an action of passing off but in trademark infringement, it is not the case. In the case of trademark infringement, the burden of proof lies on the plaintiff.
What are the trademark infringement and passing off remedies?
In the case of trademark infringement, the burden of proof lies on the plaintiff. Passing off is a common law remedy whereas Trademark infringement is a statutory remedy. For trademark infringement prosecution under criminal remedy is quite easy as compared in the case of Passing off.
How do you register a trade mark?
Tips To register a trademark, go to the U.S. Patent and Trademark Office ‘s Web site, www.uspto.gov. Make sure someone else hasn’t already registered the mark your category by checking the Trademark Electronic Search System database .
What is the trademark law?
United States trademark law. A trademark is a word, phrase, or logo that identifies the source of goods or services. Trademark law protects a business’ commercial identity or brand by discouraging other businesses from adopting a name or logo that is “confusingly similar” to an existing trademark.