Infringement and Passing Off

Two shops in the same Andheri market sell biscuits. One has a registered brand name and a blue wrapper, and the other starts selling in a similar wrapper with a name that differs by a single letter. A third shop, which never registered anything, finds its own brand copied by a stall across the lane. The first owner can sue for infringement; the third can sue only for passing off. Why does the law draw that line, and how does a court decide either case?

In two minutes

Infringement under s.29 is a statutory wrong done to the registered proprietor by an unauthorised use in the course of trade of an identical or deceptively similar mark that is likely to confuse or, for reputed marks, to take unfair advantage; passing off is the common-law wrong of misrepresenting one's goods or services as another's, available to registered and unregistered owners alike (s.27(2)).

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