A trademark is a legally protected abstract, word, symbol, color, mark, slogan, or a combination of these associated with an organization or a specific product that distinguishes it from others on the market.
Technically, Infringement, according to the Cambridge dictionary, is an activity that violates a rule, legislation, or other legal obligation, and its synonyms include breach and violation. Let’s have a look at what the term “passing off” means. According to the Cambridge dictionary, passing off is the illegal act of selling a product that is identical to one that is legally protected by a trademark owned by another firm.
Passing off and trademark infringement are often directly opposed. The primary distinction is that trademark infringement involves registered rights, whereas passing off involves unregistered rights.
Definition of Trademark Infringement
A registered trademark is infringed upon by a person who, without being a registered proprietor or a person using by way of permitted use, uses in the course of business a mark that is identical to, or deceptively similar to, the trademark in relation to goods or services for which the trademark is registered, and in such a way that the use of the mark is likely to be taken as being used in the manner in which the use of the mark is likely to be taken as being used in the manner. The use of an identical or similar trademark for the marketing of comparable products and services, or the use of a deceptively similar or identical trademark for any other sort of goods and services, is considered to be infringing on the rights of another business.
Passing Off
Passing off protects a business’s goodwill in regard to its products and services. The brand reputation that is built up in relation to certain goods or services and that attracts customers is referred to as “goodwill.” It can be owned by a single trader or shared in some circumstances, such as among all producers of a specific product in a specific area.
The difference between passing off action and an action for trademark infringement
- An action for trademark infringement is a statutory remedy and on the other hand, an action for passing off is a common law remedy.
- The use of the trademark of the plaintiff, by the defendant, is also a prerequisite in the case of an action for infringement while it is not a necessity of an action for passing off.
- In an action for infringement of the plaintiff’s trademark, it is immaterial that the outfit, outer covering, and other written marks on the goods originate from a different source than that of a registered proprietor’s trademark. The liability of the defendant in such a case may be absolute. However, in the case of passing off of trademark, the defendant may escape liability if he can show that the material added by him is sufficient to distinguish his goods from that of the plaintiff’s goods.
- In an action for infringement, Plaintiff on account of it being a registered trademark 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.
Overcoming allegations of passing off and trademark infringement may be difficult and costly. Market research studies may be required to establish if the claimant has a reputation for certain qualities of goods or services.