Infringement of a Trademark in India:
Trademark is said to be infringed when a registered trademark is used by a person who is neither the registered proprietor nor the licensee of the said trademark in relation to the goods or services for which it is registered.
Trademark infringement in India means violation of the exclusive rights granted to the registered proprietor under the Trade Marks Act, 1999 to use the same in relation to the goods or services in respect of which the trade mark is registered. Section 29 and Section 30 of the Trade Marks Act, 1999 lay down the provisions for protection of a registered trademark in case the same is infringed upon by a person not being a registered proprietor or licensee.
Passing off of Trademark in India:
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 trademark owner.
Passing off in India is a tort actionable under common law and mainly used to protect the goodwill attached with the unregistered trademarks. It is founded on the basic tenet of law that one should not benefit from the labour of another. Section 27 of the Trade Marks Act, 1999 provides that no infringement action will lie in respect of an unregistered trade mark but recognizes 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.
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