What is Passing Off in Business?

Passing off in business refers to a legal wrong where one party misrepresents their goods or services as being those of another. It is a common law tort used to protect a business's "goodwill" and reputation, specifically when a trademark is not registered. Under the Trade Marks Act, 1999, while Section 27(1) limits infringement suits to registered marks, Section 27(2) explicitly allows for passing off actions to protect an established brand identity. Unlike trademark infringement, which focuses on the unauthorised use of a registered asset, passing off focuses on the potential deception of consumers and the resulting damage to a business’s hard-earned reputation. It ensures that a competitor cannot "ride on the coattails" of your success by creating a deceptively similar brand experience that confuses the public.