Passing Off vs Infringement in India: the Litigation Data
Passing off and infringement look alike in a plaint, but they are different causes of action with different proof. Here is how they differ, and how to count them from court data.
Explainer · Trade Mark Litigation Data
Almost every Indian trade mark suit pleads two things together: infringement of a registered mark, and passing off. They are not the same claim, and mixing them up leads to weak plaints, wrong forums and bad numbers when you try to measure how many of each are filed. This page explains the legal difference in plain words, shows what a clean count of suits by type and court should look like, and lists the sources to check. Last verified October 2026.
- Infringement: a statutory claim for a registered mark (s.29, Trade Marks Act, 1999).
- Passing off: a common law claim based on goodwill, preserved by s.27(2). No registration needed.
- In practice: most plaints plead both, so a clean count needs N, courts and a pull date.
- Last verified: October 2026.
01Why the two get mixed up
Passing off and infringement are mixed up because the same set of facts often supports both. A competitor copies your mark, sells similar goods, and customers get confused. One plaint can carry both causes of action, and the court order often grants relief on both.
Plaints plead both by habit
Most plaints for a registered mark add a passing off count as a safety net. If the registration is attacked, the passing off claim still stands. This habit means a raw count of "trade mark suits" tells you little about which cause of action actually carried the case.
Data tags are loose
Court portals label cases by case type, not by cause of action. A suit filed as a commercial IP matter may be infringement, passing off, or both. To measure the split you have to look at the type code, the parties, and the order text together.
Clients ask the wrong question
Brand owners ask, "Do I need registration to sue?" The honest answer is that registration is needed for infringement, but not for passing off. That one point changes the strategy for young brands.
Infringement protects a registered mark. Passing off protects goodwill, whether or not the mark is registered.
02The legal difference
Infringement is a statutory wrong, and passing off is a common law wrong that the statute expressly preserves. Both sit in the Trade Marks Act, 1999.
Infringement
Section 29 of the Trade Marks Act, 1999 sets out when a registered mark is infringed, for example use of an identical or similar mark on identical or similar goods or services where confusion is likely. Only the registered proprietor or a registered user can sue. The right comes from the register.
Passing off
Section 27(2) of the Act says the Act does not affect the right of action against any person for passing off goods or services as those of another. The claim rests on goodwill, a misrepresentation that confuses buyers, and damage or likely damage. The mark need not be registered.
| Point | Infringement | Passing off |
|---|---|---|
| Source of right | Statute (registered mark) | Common law (goodwill), saved by s.27(2) |
| Registration needed? | Yes | No |
| What you must show | Registered mark and use by the defendant that falls within s.29 | Goodwill, misrepresentation, damage |
| Focus of the test | The mark and the statutory conditions | Whether buyers are likely to be deceived in the market |
| Typical use | Brand owners with a registration | Unregistered marks, trade dress, or as a back-up count |
03Proof, relief and jurisdiction
The proof differs, and so does the forum choice. This is where practical outcomes diverge.
Proof
In an infringement claim the registration certificate does a lot of the work. In passing off, the plaintiff has to prove goodwill with evidence such as sales, advertising spend, years of use and reputation. Courts look for deception in the market. For the test on similarity of marks, practitioners still cite the Supreme Court in Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd. (2001) 5 SCC 73, which also held that confusion is judged more strictly for medicines. You can read the judgment on Indian Kanoon.
Relief
Both claims commonly seek an injunction, damages or an account of profits, and delivery up. In practice the first fight is the interim injunction. Section 135 of the Act deals with reliefs in suits for infringement and passing off.
Jurisdiction
Section 134 of the Act lets a plaintiff in an infringement suit sue where the plaintiff carries on business, and it also covers passing off related to the same goods or services. Commercial IP suits in several High Courts are heard by specialist benches. In the Delhi High Court these are the IP Division matters, which carry their own case-type codes such as C.O.(COMM.IPD-TM) for trade mark rectification petitions.
Patents are a different game
Interim injunction practice in patent suits differs from trade mark practice. For that, see interim injunctions in Delhi patent suits and the pharma patent litigation dataset.
04Counting suits by type and court
A useful count of passing off and infringement suits needs three cuts: by type of claim, by court, and by date. Any figure quoted without a stated N and a date should not be trusted, including ours.
Step 1: fix the universe
Choose the courts (for example Delhi, Bombay, Madras, Calcutta High Courts and the commercial courts below them), the filing window, and the case-type codes that count as trade mark matters. Write them down before you count.
Step 2: classify the claim
Read the plaint or the first order. Tag each suit as infringement only, passing off only, or both. Most suits will fall in the "both" bucket, so do not force a single label.
Step 3: state N and the date
Report the number of suits counted, the courts, and the date you pulled the data. Court portals update daily and old orders get uploaded late, so counts change.
| Cut | What to count | What to state with it |
|---|---|---|
| By claim type | Infringement only, passing off only, both | N, filing window, how you tagged each suit |
| By court | Suits per High Court or commercial court | Which court sites were covered, pull date |
| By outcome stage | Interim injunction granted, refused, or pending | Order date range, how "granted" was defined |
| By case-type code | Delhi IPD codes such as C.O.(COMM.IPD-TM) | Code list used, note that rectification petitions are not suits |
05How to read the numbers
A count of suits is a count of filings, not a measure of wins. Keep four cautions in mind when you read or quote any such figure.
- Filings are not outcomes. A suit filed is not a suit won. Track the interim order separately.
- Coverage is uneven. Some courts publish orders fast and some do not. A court with fewer uploads looks quieter than it is.
- One suit, two claims. If you count claims instead of suits, "both" will be counted twice. Say which you used.
- Registry data sits elsewhere. Oppositions and rectifications at IP India are a different dataset from court suits. The IP India site is the primary source for the register and the journal.
For the wider job of watching IP cases across courts, see our guide to IP litigation tracking software in India.
06Where Claw fits
Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.
Splitting suits into infringement, passing off or both means reading orders, and that is where court data counts. Claw tracks cases, orders and hearings across 9,102 courts, benches and forums, searches 30 crore+ judgments with Supreme Court records from 1950 and High Courts from 1990, and returns results in under 5 seconds, so you can tag suits by cause of action, count them by court with a dated pull, or follow a live matter by party or advocate. Claw does not use customer documents to train AI models.
Create a FREE Claw account to count and track trade mark suits with a stated date. To search the wider body of law, see case search across Indian courts.
07Sources and further reading
Check every statute section and case against the primary source. Last verified October 2026.
- Trade Marks Act, 1999: indiacode.nic.in
- IP India (register and journal): ipindia.gov.in
- Cadila Healthcare v. Cadila Pharmaceuticals: indiankanoon.org
- Delhi High Court (IPD rules and orders): delhihighcourt.nic.in
- Claw: clawlaw.in
This page is general information, not legal advice.
08Frequently asked questions
What is the difference between passing off and trade mark infringement in India?
Infringement is a statutory claim available to the owner of a registered mark under the Trade Marks Act, 1999. Passing off is a common law claim based on goodwill and deception, and it does not need registration. Section 27(2) of the Act preserves the passing off right.
Can I sue for passing off without a trade mark registration?
Yes. Passing off protects unregistered marks if you can prove goodwill, a misrepresentation by the defendant, and damage. Evidence of sales, advertising and years of use usually decides it.
Can one suit plead both infringement and passing off?
Yes, and most do. A plaintiff with a registered mark often pleads passing off as well, so the claim survives if the registration is challenged.
Which court hears trade mark suits in India?
Commercial IP suits go to the courts with jurisdiction under section 134 and the Commercial Courts Act framework, and several High Courts have specialist IP benches. The Delhi High Court has an IP Division. Check the current rules on the court website.
How many passing off suits are filed each year in India?
There is no single official figure, and any number should come with its N, the courts covered and the date it was pulled. Count from court data using the method on this page rather than relying on an unsourced total.
Does Claw track trade mark and IP cases?
Yes. Claw tracks IP litigation across Indian courts with a case website, and its IPR Solutions tab tracks IP India matters for trademarks, patents, designs and geographical indications. It does not yet track copyright registration.