A trademark is defined as a mark capable of being represented graphically and distinguishing goods/services of one person from others. Common law protects trademarks through unfair competition claims for misrepresentation, such as when an unregistered mark is used on similar goods with intent to pass off goods as belonging to another. For a passing off claim, the plaintiff must prove the claimant's goodwill, a misrepresentation by the defendant, and damage to goodwill. Action for passing off under common law protects a trader's goodwill and is different from infringement actions which protect registered rights.

2.  Defined in Section 2(1)(zb)
 Should be a mark
 capable of being represented graphically
 Capable of distinguishing the goods and
services of one person from others
Mark may include shape of goods, their
packaging and combination of colors.

3.  Common law procedure of protecting
trademark
 Equated to unfair competition by
misrepresentation
 Invoked in cases where the trademark for
the goods is not registered
 Occurs when a person use the mark or
getup belonging to the goods of another
person on his own goods with the intention
of passing off the goods as being those of
that other person

4.  In Erven Warnick Besloten vennotschap v J
Townend & Sons (Hull) Ltd., states the
essentials:
a) A misrepresentation
b) Made by a trader in the course of trade
c) To ultimate or prospective consumers of
goods
d) Injure the business of another trader
e) Causes actual damage to that trader

5.  Plaintiff has to prove three things for claiming
damages in action for passing off;
a) Claimant’s Goodwill
b) Misrepresentation
c) Damage to Goodwill
The basic test is whether a substantial no of
persons have been or is likely to have been
deceived by the defendant’s misrepresentation

6.  Applied by the courts on the principles of
English law
 Recognized in India through
a) Trade Marks Act, 1999
b) Geographical Indications of
Goods(Registration and Protection) Act, 1999
 Provides claim for damages in case of
unregistered trademark
 A different form of remedy than
infringement(actionable by registered
proprietor)

7. As common law remedy action for passing off
can be taken in India when an attempt to
pass off goods by misrepresentation has
been made by the trader as those of another
trader. It is quite different than action for
infringement as it protects the goodwill of
trader instead of his recognized rights.