A brand owner's legal remedy against unauthorized use depends entirely on whether their trademark is formally registered.
1. Trademark Infringement vs. Passing Off
| Trademark Infringement | Passing Off Action |
|---|---|
| A statutory remedy under the Trademarks Act, 1999 (protects registered marks). | A common-law tort action based on equity (protects unregistered marks/commercial goodwill). |
| Requires proof of valid registration and unauthorized identical/similar use in trade. | Requires proof of: (1) Brand goodwill; (2) Misrepresentation by defendant; (3) Actual or potential damage. |
| Easiest to prosecute; registration serves as prima facie evidence of exclusive ownership. | Requires extensive evidence of long usage and customer identification in the market. |