It has been settled in catena of authorities that essential characteristics of a passing off action are as follows:
- Made by a person in the course of trade mark;
- To prospective customers of his or ultimate consumers of goods or services supplied by him;
- Which is calculated to injure the business or goodwill of another trade;
- 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:-
- Whether the Plaintiff is prior user of the mark in point of time.
- 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.
- 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.