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ARTICLE · 01 JUNE 2017

Passing Off In Design

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Design is considered a statutory right whereas passing off and trade mark are considered as sui generis right. A statutory right entails its origin and extinguishment happens in terms of the statue.

IndiaIntellectual Property
N. Mahabir
N. Mahabir
  1. Design is considered a statutory right whereas passing off and trade mark are considered as sui generis right.  A statutory right entails its origin and extinguishment happens in terms of the statue.  Prior publication of a design is a ground for its revocation under Design Act.  On the other hand, Section 9 (3) prohibits registration of certain marks.  There is an overlap between design and trade mark in the matter of shape of articles.
  2. Way back in 1999 in the case of Smithkline Beecham Plc vs. Hindustan Lever Ltd.,the Delhi High Court accepted that there could be passing off in design dehors the Design Act.  The Court held:

    "13.I am, therefore, inclined to hold that passing off action is also available to case of design and such right could be enforced provided the same is available in accordance with law even in a case of design, for otherwise a latitude would be given to a manufacturer to misrepresent and to deceive unwary customers by manufacturing and

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