The Significance of Passing Off in Indian Jurisprudence

What is ‘passing off’ in Indian law?

Passing off is a common law tort recognised by Indian courts to protect the reputation and goodwill of a person or business. It prevents one party from misrepresenting their goods, services, or content as being connected with another who has an established public image or brand. Notably, passing off does not depend on formal registration.

What is its legal standing in India?

While not codified under a specific statute, passing off is well-established in Indian jurisprudence through various court decisions. It is legally enforceable under the broader principles of equity and common law, and has been supported by Indian courts under:

• Section 27(2) of the Trade Marks Act, 1999, which recognises the right to institute a passing off action.
• Constitutional protections, such as Article 21, which safeguards individual dignity.
• Judicial precedents, where courts have upheld passing off claims involving both businesses and individuals.

How is it different from trademark infringement?

• Trademark infringement requires a registered trademark and protects it under statutory law.
• Passing off does not require registration and protects broader attributes such as name, image, or reputation based on public recognition and goodwill.

Can individuals claim passing off for identity misuse?

Yes. Courts have extended passing off protection to individuals whose identity—such as name, image, voice, or style—is commercially exploited without consent. This is especially relevant when such use misleads the public into believing there is a connection or endorsement.

How does it help in today’s digital context?

In the age of AI, deepfakes, social media virality, and video games, identity misuse has become more common and damaging. For instance:

• Celebrities and public figures are seeing their likeness, voice, or catchphrases used without consent in advertisements, games, or viral videos.
• Passing off helps prevent unauthorised associations and provides victims with a legal route to stop misuse and seek compensation.

What are the essential components of a passing off claim?

To succeed in a passing off action, courts generally require proof of:

• Goodwill or public reputation of the individual.
• Misrepresentation that causes confusion or implies a false link.
• Damage or likelihood of damage to the individual’s image, dignity, or economic interests.

Can non-entertainment personalities use passing off?

Yes. Spiritual leaders, sportspersons, influencers, and public speakers can also claim protection under passing off. For example, Sadhguru took legal action against websites creating AI-generated deepfakes that misrepresented his speech and views, misleading his followers.

What remedies are available in passing off cases?

Courts may grant:

• Injunctions to restrain further misuse.
• Monetary compensation for loss or harm caused.
• Orders to take down infringing content or recall misleading products.