The plaintiff in a suit for passing off must be the owner of a trade mark which has acquired reputation in relation to some goods or the owner of the goodwill in a trade name, or get-up relating to some goods or business or profession.
The defendant in the suit must be a person who has passed off or whose activities are likely to pass off his goods or business as the goods or business of the plaintiffs.
Passing off actions may be instituted by many plaintiffs in a representative capacity provided there is common interest, common grievance and a remedy beneficial to all.
The rules governing the preparation of the plaint and the subsequent proceedings are the same as in any other suit and are governed by the Code of civil Procedure.
It is a general practice to file an application for interim injunction along with the plaint. In suitable cases an ex parte injunction may be obtained for a short period.
Interlocutory injunction pending the trial of the suit may be granted if the plaintiff establishes a strong prima facie case and shows that the balance of convenience is in his favour.
Once an interlocutory injunction is granted in most cases, the matter may not come up for trial as the defendant might think it wise to choose a different trade mark or name, in lieu of an interim injunction the court may order the defendant to keep the accounts, in which case there is a probability of the parties coming to an out of court settlement.
The trial of the suit when it comes is a long drawn out process involving considerable expenditure and time for the parties.
In passing off suits an absolute injunction as in infringement action restraining the defendant from using a mark or name is seldom granted.
The injunction will generally be in a qualified form, by use of the word, mark, name etc. without clearly distinguishing their goods or business from those of the plaintiff’s.