'Passing off' is a common tactics to use a similar trade mark. Is it possible to resort to 'passing off' petition in unregistered trade mark ?

The Indian trademark law statutorily protects trademarks as per the Trade Marks Act, 1999 and also under the common law remedy of passing off. The passing off is a common law of tort which can be used to enforce unregistered trade mark rights. Passing off action arises when an unregistered trademark is used by a person who is not the proprietor of the said trademark in relation to the goods or services of the trade mark owner. It is a tort and actionable under common law. Section 27 of the Trade Mark, 1999 provides that no infringement action will lie in respect of an unregistered trade mark but recognises the common law rights of the trade mark owner to take action against any person for passing off their goods/services as the goods of another person or as services provided by another person. Section 134 of the Trade Marks Act, 1999 provides that no suit for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.