A confectionery company VITA was launched in India in 1940 which owned many registered trademarks in India and abroad. The Company is particularly famous for its "Gluco" biscuit. With its unique color scheme and design o

Trademark is essentially adopted to advertise one's product and to make it known to the purchaser. It attempts to portray the nature and quality of a product. And over a period of time when the product becomes popular, temptations sprout up and induce others to pass off a similar or nearly similar product of theirs as that of the original owner, though not in the same words and same symbols, but in a way that makes the gullible consumer believe the product that he is purchasing is the same as the one on whose quality he has full faith and confidence. Passing off is not defined in the Trademark Act, 1999. It is referred to in Section 27 (2), 134 (1)(c) and 135 of the Act. The notion of Passing off in the Indian Trademarks Act, 1999 seeks to safeguard the goodwill associated with unregistered trademarks. Passing off is a common law tort which occurs when a person sells his products as the goods of another, wherein the trademark owner can take legal action to remedy this violation. This idea was developed in the seminal English case of 'Perry v Truefitt' (1842) where the Court held that "a man is not to sell his own goods under the pretence that they are the goods of another man". The concept of the Passing Off in Trademark Act has since expanded to include various commerce, services, business, and non-business activities. Passing off action depends upon the principle that nobody has a right to represent his goods as the goods of somebody else. That is, a man shall not sell his goods or services under the pretence that they were those of another person. The modern tort of passing off has five elements- a misrepresentation; made by a trader in the course of his trade; to prospective customers of his or ultimate consumers of goods or services supplied to them; which is calculated to injure business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence); and which causes actual damage to a business or goods of the trader by whom the action is brought or will probably do so. While an action for passing off is a common law remedy for passing off of one's own goods as those of another, action for infringement of a trade mark is a statutory remedy for vindication of one's own exclusive right to the use of trade mark in relation to those goods. The use by the defendant of a trademark is not essential in an action for passing off but is a sine qua non in the case of an action for infringement. In a passing off action the plaintiff's right is "against the conduct of the defendant which leads to or is intended to lead to deception. Passing off is said to be 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 that the other has established for himself in a particular trade or business. The action is regarded as an action for deceit".