Most conversations about trademark protection start with registration. And rightly so — registered rights are stronger, easier to enforce, and more comprehensive. But registration is not the only route to legal protection for your brand.

India recognises the common law tort of passing off, which protects brand owners who have established goodwill and reputation — even without a registered trademark.

What Is Passing Off?

Passing off is a cause of action that prevents one trader from misrepresenting their goods or services as those of another, where that misrepresentation damages the other’s goodwill.

In simpler terms: if your brand is well-known in the market and someone uses a similar name or identity to deceive customers into thinking they’re dealing with you, you can sue — whether you’re registered or not.

The doctrine originates in English common law and has been consistently recognised and applied by Indian courts, including the Supreme Court.

The Classic Three-Part Test

The foundational test for passing off — established in English law and adopted by Indian courts — requires three elements:

Goodwill: The claimant must have goodwill attached to their business or goods. Goodwill is the reputation and recognition the brand has earned in the relevant market. This is proven through evidence of use — sales, advertising, media coverage, customer recognition, length of trading.

Misrepresentation: The defendant must be making a misrepresentation — directly or indirectly — that their goods or services are those of the claimant, or are connected with the claimant’s business. The misrepresentation need not be intentional; it’s the effect on consumers that matters.

Damage: The claimant must have suffered, or be likely to suffer, damage to their goodwill as a result of the misrepresentation. This can be actual loss of sales, dilution of reputation, or the prospect of losing customers to the infringer.

All three elements must coexist. Goodwill without misrepresentation doesn’t give you a case. Misrepresentation without goodwill doesn’t either.

What Evidence Do You Need?

Because passing off is not a statutory right, you have to prove your claim entirely through evidence. This typically includes:

Sales and revenue records demonstrating the scale of your business Marketing and advertising expenditure showing you’ve invested in building the brand Media and press coverage establishing the brand’s public profile Customer affidavits and testimonials attesting to recognition Documented length and geographic scope of use Expert evidence on reputation in the industry

The strength of a passing off case is directly proportional to the quality and volume of evidence. Brands with deep roots in their market, long trading histories, and documented marketing activity are in the strongest position.

How Indian Courts Have Approached It

The Supreme Court of India, in Laxmikant V. Patel vs. Chetanbhai Shah (2002), reaffirmed that passing off is a well-established common law remedy available to proprietors of unregistered trademarks. The Court held that what is actionable is not just the direct sale of goods as another’s, but any conduct calculated to deceive.

Indian courts regularly grant interim injunctions in passing off cases, applying the same three-part test used in registered trademark infringement — prima facie case, balance of convenience, and irreparable harm.

High Courts across India — particularly Delhi, Bombay, and Madras — have a robust body of passing off jurisprudence covering everything from packaging and trade dress to distinctive colour schemes.

Registered + Unregistered: The Combined Suit

In practice, the most powerful legal position is to bring both claims simultaneously. Many trademark suits in India plead registered trademark infringement under the Trade Marks Act and passing off as a common law claim, in the same proceeding.

This gives the court two independent legal bases to grant relief. Even if the registered trademark claim faces some technical hurdle, the passing off claim may succeed independently.

For established brands that have been trading under a mark before they registered it — or for whom the registration process is underway — combined suits are the standard approach.

The Limits of Passing Off

Passing off has real limitations compared to registered rights.

The burden of proof is higher: you must establish goodwill through evidence, which takes time and cost to assemble.

The protection is geographically limited: your goodwill only extends to the territories where you actually trade. A Delhi-based restaurant chain cannot invoke passing off against a Bengaluru business unless it can show recognition in Bengaluru.

It does not create priority: a later registrant can, in some circumstances, challenge your continued use based on their registration, depending on the date of their registration and the extent of your prior use.

The Practical Advice

Passing off is a real and valuable remedy. But it’s a remedy of last resort compared to registration. If you have an established brand and have not yet registered your trademark — do it now. Register, build the documentary record of use alongside registration, and ensure that both routes to protection are available to you.

Don’t rely on passing off when registration is available. Use both.