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What is the distinction between Passing-off and infringement of Trade Mark?

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Distinction between infringement of trade mark and passing off

"There is a distinction between passing-off and infringement of Trade mark.

An action for infringement of trade mark is a statutory remedy conferred on the registered proprietor of a registered trade mark for the enforcement of his right to use the trade mark in relation to the goods for which the mark has been.

An action for passing-off is an action for deceit for colourable imitation of a mark adopted by a person in relation to his goods which has acquired distinctive reputation in the market as referring to the goods belonging to or produced by that person only.

An action for passing-off is common law remedy and the plaintiff need not establish title for the same. What he is required to show is that his goods have distinctive features. "


Per NWODO, J.C.A. in VIRGIN ENT. LTD. v. MOHAMMED (2009) 12 NWLR (Pt. 1151) 136 C.A.