Trademark passing off
The term ‘trademark’ refers to a brand or logo that represents a business. It is a visual symbol of a signature, name, device, label, number, or combination of colors used by a trademark owner for goods or services or any other articles of commerce. Moreover, it means the difference between similar products or services originating from different businesses. A trademark can be a word, wrapper, packaging labels or tagline or a combination of these. What is your exact need?. Here, in this blog we will get to know about the Trademark Passing off – Trademark Registration in Tirupur. For example Coca-Cola and Pepsi. There are several types of trademarks listed below:
Name or signature of the person or surname or precedent in the business.
A coined word or a discovered word or a dictionary word that is not directly descriptive of the character.
Alphanumeric or letter or any combination thereof.
Image, symbol, monogram, three-dimensional shape etc.
Sound marks in Audio format
If a person sells his goods as another’s goods, then the trademark owner can take action as this is a matter of passage. Passing off is used to safeguard the goodwill attached to an unregistered trademark. When a trademark is registered and infringed by the owner, it then becomes a breach claim, but if the trademark is not registered by the owner and infringed, it becomes a passing case.
The principle of passage, that is, “no one has the right to represent his own goods because someone else’s goods” was decided in the case of Perry v. Truffit (1842). The law that has been passed has changed over time. Previously it was forbidden to display the goods of one person as another. It was later expanded to trade and services. This was later expanded to commercial and non-commercial activities. Now, it applies to many forms of unfair trade and unfair competition where the activities of one person harm the goodwill associated with the activities of another person or group of individuals.
Passing is difficult to prove, as claimants need to show that at least some people are at risk of confusion between the two businesses. The most important question to pass is whether the behavior of the defendants is such as to confuse people that the business of the defendants is plaintiff or is it a cause of confusion between the business activities of the two. This act of misrepresentation often harms the goodwill of a person or business, financially or respectably.
Kind of passing off
There are two types of passes-
Extended Pass-Off –
Where misrepresentation as a specific quality of product or service harms the harmony or goodwill of another person or business.
Reverse passing off
Where a merchant sells or sells goods or services to another person or business.
There are three basic elements of passage. The three elements are also known as the classical trinity, such as Ricketts & Coleman Ltd. by House Lord F. Vs. Borden Inc. Restored in the case of, who established the three elements of passage, namely misrepresentation, goodwill and loss. They are:
Where defendants believe that the goods and services they are providing belong to the plaintiff.
It must be proven that the person or the trademark of goods and services has some kind of reputation that connects people to that particular goods or services. It is more broadly defined by Lord M. Canften in the case of Trago v. Hunt:
It often happens that goodwill is the very essence and life of a business, without which there is little or no benefit in business. The full benefit of this is whatever the reputation and affiliation of the firm may be, which can be achieved through years of honest work or a noble expenditure of money. ’
CIT v. B.C. SrinivasaSethi, it was planned that every matter related to the business of goodwill, the personality of the owners, the form and character of the business, its name and reputation, its location, the contemporary market and its current influence on economic psychology.
In the end, in order for the aggrieved party to succeed in taking action to stop, the aggrieved party must prove that the alleged misrepresentation has caused him real or reasonable loss of business. This is usually difficult to prove and involves an examination of the accounts of both parties on a practical basis. This is enough to prove the possibility of loss. It must be proven that misrepresentation has damaged goodwill or damaged reputation.
The difference between passing off and trademark infringement
Passage and trademark violation are specific and have different concepts. Passage is the protection of the goodwill of traders regarding goods and services. “Goodwill” is the reputation of a brand that was created in relation to special goods or services and which attracts customers. It can be shared between individual merchants or in some cases, all manufacturers of a particular product in a particular area.A party that owns certain trademark rights can sue other parties for trademark infringement. The likelihood of confusion determines whether a person can sue another business or person for a trademark infringement. If using another person’s trademark to sell a product or service causes the consumer confusion about the source of the product or service, that person is likely to violate the trademark.
The main difference is that trademark infringement is related to registered rights, and passing through unregistered rights of a person or company, entity, etc. In simple terms when a trademark is registered and infringed by the owner, it becomes a breach. There is a claim, but if the trademark is not registered by the owner and is violated, then it becomes a case of passing.
Pass off happens when,
General Law remedy
No trademark registration required.
The trademark must be registered.
The plaintiff must not only prove the intentional similarity between the two conflicting marks but also the presence of confusion among the customers and the possibility of damaging the plaintiff’s goodwill and reputation.The plaintiff must prove that the infringer is the same as the intentionally registered trademark with respect to the same goods or services, and no further evidence is required since the assumption of confusion.Proceedings under criminal remedy are more than trademark infringement. The plaintiff will have to make a good, misrepresentation and damage on his part.
Hence trademark passing off helps a registered user alone. Thus trademark registration is important.