Difference between Infringement and Passing Off

Infringement 

1. Statutory remedy given to registered proprietors of a registered trade mark
2. If defendant adopts essential features of the trade mark, then even though other things might be different i.e. Packaging, get up, any other writing etc. it is immaterial 
3. Plaintiff has to establish the use of his mark by defendant which is identical or deceptively similar 
4. Issue is: Is the defendant using a mark which is the same as or which is a colourable imitation of the plaintiff’s registered trademark 
5. Depends on the validity of the registration and any other conditions/ restrictions under the Act 

Passing Off 

1. Common Law remedy given to users of an unregistered trade mark
2. Defendant may escape liability if the added manner was sufficient to distinguish the goods from the plaintiff 
3. The defendant’s mark or goods are such that the defendant can pass off his goods as those of plaintiff 
4. Issue is: Is the defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plaintiff’s goods 
5. No such thing