CAN MERELY FILING A TRADEMARK APPLICATION FOR A MARK CONSTITUTES PASSING OFF?
The court in the case of K.Narayana and Another Vs. S.Murali held that merely filing a Trademark does not constitute passing off. For Passing Off need to be established, there should be misrepresentation in the
course of trade which is very essential ingredient for establishment of the passing off case.
The relevant paragraphs from the judgement are provided below:-
Para 23- It was finally argued by the learned counsel
appearing on behalf of the respondent before us, that, by merely filing a trade
mark application, the respondent did not misrepresent in the course of trade
that his goods were the goods of the appellants and therefore there was no
cause of action for filing a suit for passing off, which necessarily required
sale of one's goods deceptively as though it were the goods of another.
Para 24- Having heard the learned counsel for the parties
and after carefully examining the aforementioned judgment of the High Court and
also of the learned Single Judge, we do
not find any infirmity in the judgment of Division Bench of the High Court
holding that, before registration is granted for the trade mark, there is no
right in the person to assert that the mark has been infringed and that a
proposed registration which may, or may not be granted will not confer a cause
of action to the plaintiff, whether the application for registration is filed
by the plaintiff, or the defendant.
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