Passing Off is a common law tort that protects the goodwill attached to an unregistered trademark, trade name, get-up, or other business identifier from misappropriation through deception, by preventing one trader from misrepresenting their goods or services as those of another. Under Indian law, the right to bring a passing off action is preserved by Section 27(2) of the Trade Marks Act, 1999, and requires proof of three elements: goodwill, misrepresentation, and damage.
Legal definition
Unlike trademark infringement, passing off is not defined in any statute. It is a common law remedy preserved by the Trade Marks Act:
Section 27(2): Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods of another person or as services provided by another person, or the remedies in respect thereof.
The classical trinity of passing off, established by the House of Lords in Reckitt & Colman v. Borden [1990] and consistently applied by Indian courts, requires proof of:
- Goodwill: The plaintiff must establish goodwill attached to its goods, services, or business in the mind of the purchasing public, by association with the identifying get-up (brand name, mark, trade dress, packaging, or any other distinctive feature)
- Misrepresentation: The defendant must have made a misrepresentation (whether intentional or not) to the public, leading or likely to lead the public to believe that the goods or services offered by the defendant are the plaintiff's goods or services or are associated with the plaintiff
- Damage: The plaintiff must demonstrate that it has suffered, or is likely to suffer, damage to its goodwill or business as a result of the defendant's misrepresentation
How courts have interpreted this term
Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd. [(2001) 5 SCC 73]
The Supreme Court defined passing off as "a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which the other has established for himself in a particular trade or business." The Court held that in pharmaceutical cases, the stricter standard of comparison applies because even a remote possibility of confusion can have dangerous consequences.
Laxmikant V. Patel v. Chetanbhat Shah [(2002) 3 SCC 65]
The Supreme Court held that passing off and infringement are independent actions — the same facts can support both. However, passing off is "broader in the sense that it protects goodwill regardless of registration, but narrower in the sense that it requires proof of misrepresentation and damage rather than merely the use of a deceptively similar mark."
Satyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd. [(2004) 6 SCC 145]
The Supreme Court extended passing off principles to domain names, holding that domain names possess all the characteristics of trademarks — they distinguish goods and services and indicate the source of origin. The Court held that the adoption of a deceptively similar domain name with the intention of diverting internet traffic constitutes passing off.
Why this matters
Passing off is an indispensable remedy in the Indian IP landscape because it protects business goodwill regardless of whether the mark, name, or get-up is registered. This is particularly significant in India, where a large number of businesses — especially small and medium enterprises — operate with unregistered marks and trade names.
For businesses that have not registered their trademarks, passing off provides the only available remedy against imitators. However, the evidentiary burden is heavier than in an infringement action: the plaintiff must prove goodwill (through evidence of sales, advertising expenditure, duration of use, and market reputation), misrepresentation (through evidence of consumer confusion or the likelihood thereof), and damage (through evidence of lost sales, damage to reputation, or dilution).
For practitioners, a passing off action can be combined with a trademark infringement claim where the plaintiff holds a registered mark. This dual strategy provides comprehensive protection — if the registration is challenged or found invalid, the passing off claim survives independently. Courts frequently grant injunctions in passing off cases, particularly where there is evidence of deliberate copying or dishonest trading.
Related terms
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Frequently asked questions
How is passing off different from trademark infringement?
Passing off is a common law remedy that protects unregistered marks based on goodwill; infringement is a statutory remedy under Section 29 that requires a registered trademark. In passing off, the plaintiff must prove goodwill, misrepresentation, and damage. In infringement, the plaintiff need only prove use of a deceptively similar registered mark. Both actions can be brought simultaneously where the plaintiff holds a registration.
Does passing off apply to domain names?
Yes. The Supreme Court in Satyam Infoway v. Sifynet (2004) held that passing off principles apply to domain names. The adoption of a deceptively similar domain name that creates confusion about the source of goods or services constitutes passing off, regardless of whether the plaintiff's mark is registered.
Can passing off protect a product's packaging or trade dress?
Yes. Passing off extends beyond brand names to any distinctive feature associated with a business — including packaging, get-up, colour combinations, product shape, and trade dress. The plaintiff must prove that the get-up has acquired distinctiveness through use and is associated in the public mind with the plaintiff's goods or services.
This entry is part of the Veritect Indian Legal Glossary, a comprehensive reference of Indian legal terminology grounded in statutory text and judicial interpretation.
Last updated: 2026-03-27. Veritect provides this content for informational purposes and does not constitute legal advice.