Section 27 Trade Marks Act 1999 enacts the rule that NO ACTION FOR INFRINGEMENT shall be brought for an UNREGISTERED trade mark; however, sub-section (2) preserves the right to bring a COMMON LAW ACTION OF:
Answer & Solution
Correct answer: D.
1. Section 27(1) Trade Marks Act 1999: 'No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark.'
2. Section 27(2): 'Nothing in this Act shall be deemed to affect rights of action against any person for PASSING OFF goods or services as the goods of another person or as services provided by another person, or the remedies in respect thereof.'
3. Passing off is a COMMON LAW TORT — owner of an unregistered mark with established goodwill may sue for passing off.
4. The classic test (Reckitt & Colman v. Borden, [1990] 1 WLR 491): goodwill, misrepresentation, damage (Cadila Healthcare v. Cadila Pharmaceuticals, (2001) 5 SCC 73 applied in India).
5. Hence option B is correct.
_Source: Patents Act 1970 / Copyright Act 1957 / Trade Marks Act 1999 (Bare Acts, IPIndia portal + Copyright Office) — Trade Marks Act 1999, Section 27_
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