Source-This post on ’Passing off’ under Trademark Rules is based on the article “Why Delhi’s Dolma Aunty Momos challenged the use of her trade mark, what the law says” published in “The Indian Express” on 18th March 2024.
Why in the News?
The Delhi High Court recently revoked a trademark registration for “Dolma Aunty Momos” owned by Mohammed Akram Khan. This decision came after a lawsuit filed by Dolma Tsering, who claimed rights to the trademark.
| Trademark 1. About– A trademark is a symbol, design, word, or phrase that represents a business. Registering a trademark gives its owner exclusive rights to use it. 2. Regulation– The Trademarks Act of 1999 regulates trademarks and their registration in India. It ensures protection for trademarks registered with the Controller General of Patents, Designs, and Trademarks, also known as the trademark registry. 3. Validity– Under Section 25 of the 1999 Act, a trademark remains valid for 10 years after registration and can be renewed by the owner regularly. |
What is ’Passing off’ under Trademark Rules?
1. About:
a. Passing off involves using someone else’s goods or services without authorization, which can mislead customers about the origin of those products.
b. Passing off is when someone sells their products as if they belong to someone else.
2. Protection against Passing off:
a. The concept of Passing off under the Indian Trademarks Act of 1999 aims to protect the reputation linked with unregistered trademarks.
b. While passing off isn’t specifically defined in the Indian Trademarks Act of 1999, Section 27 recognizes the common law rights of a trademark owner. This allows the owner to take legal action against anyone who tries to pass off goods or services as belonging to another person.
3. Difference between infringement and Passing off– If the trademark is registered and infringement occurs, it’s a case of infringement. If the trademark isn’t registered and infringement occurs, it’s a case of passing off.
4. Supreme court ruling on Passing off:
a. In Cadila Healthcare Limited vs. Cadila Pharmaceuticals Limited (2001), the Supreme Court described passing-off as a form of unfair trade competition.
b. It occurs when one brand deceives consumers by trying to pass off its product or service as another, benefiting from the latter’s reputation.
c. To prove passing off, there needs to be some kind of deception or damage to the original owner’s reputation and goodwill.
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