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Difference Between Passing Off And Infringement

For a passing off action registration of trademark is not relevant. It is based on property in goodwill acquired by use of the mark. On the other hand infringement is based on statutory right acquired by registration of trademark. In case of a passing off action, the defendant's goods need not be same as that of the plaintiff, they may be allied or even different. In case of an action for infringement, the defendant's use of the offending mark may be in respect of the goods for which the mark is registered or similar goods. In the claims of infringement based on well known trade marks, the barrier of goods stands further diluted in view of the provisions of the Trade Marks Act, 1999. Another difference between the two is that in passing off action identity or similarity of marks is not sufficient, there must also be likelihood of confusion. But in case of infringement if the marks are identical or similar no further proof is required.

In the case Durga Dutt Sharma V. N.P. Laboratories , a Supreme Court judgment, the difference between the two has been laid. It was held that " An action for passing off is a Common law remedy, being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another. But that is not the gist of an action of infringement. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to use the trade mark."

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