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ARTICLE · 01 JUNE 2017

Is Prior Use The Knock Out Punch In Passing Off Cases

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The tort of passing off is a common law remedy. It is a facet of Unfair Competition. As the term denotes it is a false representation about the source or quality of goods, service or business.

IndiaIntellectual Property
N. Mahabir
N. Mahabir
  1. The tort of passing off is a common law remedy. It is a facet of Unfair Competition. As the term denotes it is a false representation about the source or quality of goods, service or business. Passing off could result from use of similar mark, shapes, get up or even generic terms. There is a falsehood which the goods or service is telling about itself. In the case of Laxmikant V. Patel Vs. Chetanbhat Shah & Anr., the Supreme Court of India quoting from Salmond & Heuston in Law of Torts held that:

    "The legal and economic basis of this tort is to provide protection for the right of property which exists not in a particular name, mark or style but in an established business, commercial or professional reputation or goodwill....The gist of the conception of passing off is that the goods are in effect telling a falsehood about themselves, are saying something about themselves which is calculated to mislead. The law on this matter is designed to protect traders against

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