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8.7 Section 28(3) is, in fact, merely a sequitur to Section 28(1) which confers, on the registered proprietor of any trade mark, the exclusive right to use the mark in the class or classes in which it is registered.

8.8 This statutory position stands underscored and reinforced by the following passages from S. Syed Mohideen v P. Sulochana Bai8:

"24. The effect of registration is provided in Chapter IV of the Act in Section 27. This Section provides that no infringement will lie in respect of an unregistered trade mark. However, Section 27(2) 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. Section 27 reads as under:

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.

(1) In all legal proceedings relating to a trade mark registered under this Act (including applications under Section 57), the original registration of the trade mark and of all subsequent assignments and transmissions of the trade mark shall be prima facie evidence of the validity thereof.

16 27. No action for infringement of unregistered trade mark. -

(e) the existence of connection in the course of trade. The Supreme Court has also held that, in passing off action on the basis of unregistered trade marks, the Court is required to assess the likelihood of deception or confusion by examining

(i) the nature of the marks, i.e. whether there were demands/label marks/composite marks,