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6. In the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., 2001 PTC 300, the Hon'ble Supreme Court has observed as follows:-

"Under Section 28 of the Trade and Merchandise Marks Act on the registration of a trade mark in Part-A or B of the register, a registered proprietor gets an exclusive right to use the trade mark in relation to the goods in respect of which trademark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by the Act. In the case of unregistered trade mark, Section 27(1) provides that no person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark. Sub Section (2) of Section 27 provides that the Act shall not be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. In other words in the case of unregistered trade marks a passing off action is maintainable. The passing off action depends upon the principle that nobody has a right to represent his goods as the goods of some body. In other words a man is not to sell his goods or services under the pretence that they are those of another person. As per Lord Diplock in Erwen Warhnink BV v. J. Townend & Sons, 1979 (2) AER 927, the modern tort of passing off has five elements i.e. (1) a mis-representation, (2) made by a trader in the course of trade, (3) to prospective customers of his or ultimate consumers of goods of services supplied by him, (4) which is calculated to injure the business or good will of another trader (in the sense that this is a reasonably foreseeable consequence), and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in a quia timer action) will probably do so.
Broadly stated in an action for passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors to be considered:
a. The nature of the marks i.e. whether the marks are word marks or label marks or composite marks i.e. both words and label works.
b. The degree of resembleness between the marks, phonetically similar and hence similar in idea.
c. The nature of the goods in respect of which they are used as trade marks.
d. The similarity in the nature, character and performance of the goods of the rival traders.