Indian trademark Act, 1999 is both substantive and procedural in nature. The Act states not to state the trademark owner’s rights and provides the procedure to safeguard those rights. If someone misuses the trademark or brand names, then the action of infringement (incase of registered brands) or passing off (in case of unregistered brands) can be initiated against such infringers.

Infringement and passing off are two pillars of trademark litigation. Trademarks are any kind of logo, design, graphical presentation of marks, a combination of logo and words or words with unique appearance (font style, font types). When any third party apart from the original owner of the mark that is the proprietor of the mark, uses the mark without prior authentic permission of the owner- it constitutes the act of infringement or passing off.

An unregistered trademark is placed at the same footing as a registered trademark in matters connected with offences, penalties and procedural actions with respect to IPR and Civil actions contemplated under Section 134 and 135. Section 27 of the Trademarks Act, 1999 deals with the maintainability of a suit of passing off. It states that “wherever there is a possibility of marks being registered, if any third party uses the mark, then action of passing off of goods can be maintained”.

The law of passing off is designed to protect traders against any form of unfair trade practices by using the benefits of the reputations built and acquired by a rival trader. The law does not allow any person to misrepresent his goods and business that are the same as the goods and business of another.

Trademark infringement happens when a trademark used by an individual or organization is similar or the same as the registered trademark rights of another individual or organization in the same jurisdiction. By law, a penalty and imprisonment are applicable for the individual who is committing the infringement to be incorrectly using a registered trademark.

It is important to mention here that if a mark is infringed or being infringed, then the proprietor of the mark is required to bring the suit for infringement against the infringer within 3 years from the date of infringement or misuse- as per the limitation act, 1963.