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27.No action for infringement of unregistered trade mark:

1) No person shall be entitled to institute any proceeding to prevent, or to recover damages for the infringement of an unregistered trade mark.

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.

Section 134. Suit for infringement, etc., to be instituted before District Court:

(1)     No suit.
a)      For the infringement of a registered trade mark; or
b)      Relating to any right in a registered trade mark; or
c)      For passing off arising out of the use by the defendant of any

trade mark which is identical with or deceptively similar to the plaintiffs trade mark, whether registered or unregistered, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.

A reading of the above provision shows that no action for infringement will lie in respect of an unregistered trade mark, but recognises the common law rights of the trade mark owner to take action against any person for passing off goods as the goods of another person or as services provided by another person or the remedies thereof. In order to prove passing off by the defendant, the plaintiff has to establish that the defendant is misrepresenting to the general public to sell his product as that of the products of the plaintiff, damaging the business or goodwill of the plaintiff.