What is Passing Off Under Trademark Law?

The law of passing off is a common law remedy that protects the goodwill and reputation of a business against false representation by another person.

Under Indian trademark law, even an unregistered trademark can be protected through a passing off action under Section 27(2) of the Trade Marks Act, 1999.

It prevents one party from misrepresenting its goods or services as those of another, thereby misleading consumers.

To succeed in a passing off claim, courts generally examine three elements: goodwill of the original brand, misrepresentation by the defendant, and resulting damage or likelihood of damage to the plaintiff’s reputation or business.