CS Professional · Intellectual Property Rights - Law and Practice · Trademarks
Ravi, owner of an unregistered mark, sues a competitor for passing off. The competitor proves he began using the mark unaware, with no reasonable ground to believe the plaintiff's mark was in use, but he continued using it after learning of the plaintiff's mark. Can the court award damages?
Yes, damages may be awarded. The statutory protection for innocent passing off defendants needs both initial unawareness and prompt cessation upon learning of the plaintiff's mark. Since he kept using the mark, the second condition fails and the court may grant damages or an account of profits.
- ANo, because he was unaware at the start
- BNo, because passing off never attracts damages
- CYes, the court is not barred, since he did not cease forthwith on becoming awareCorrect
- DOnly if the plaintiff's mark was registered
Explanation
Section 135(3)(c) bars damages or profits only if both conditions are met: unawareness at commencement and forthwith cessation on becoming aware. Continued use fails the second condition, so the bar does not apply. Section 135(1) permits damages or an account of profits at the plaintiff's option.
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