Essential Characteristics of A Passing Off Action

It has been settled in catena of authorities that essential characteristics of a passing off action are as follows:

1. Misrepresentation;
2. Made by a person in the course of trade mark;
3. To prospective customers of his or ultimate consumers of goods or services supplied by him;
4. Which is calculated to injure the business or goodwill of another trade;
5. Which causes actual damage to a business or goodwill of the trade by whom, the action is brought or well probably do so.

In a typical suit for Passing off, the Courts generally frame following issue / questions for consideration and determination:-

1. Whether the Plaintiff is prior user of the mark in point of time.
2. Whether the goods of the Plaintiff have acquired distinctiveness with any name or mark and are associated in the minds of the general public as those of Plaintiff.
3. Whether there is a misrepresentation by the Defendant with regard to his goods and such misrepresentation is likely to lead to confusion in the minds of the people as a result whereof they may treat the goods of the Defendant as those of the Plaintiff.