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3. Learned Counsel for the respondents, on the other hand, submits that a suit for passing off goods or services is maintainable even in respect of an unregistered trade mark. In support of his contention, learned counsel for the respondents has relied upon a judgment rendered by Hon'ble Supreme Court in the case of Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd. reported in (2001) 5 SCC 1973. Paragraph no.10 of the said judgment is extracted below:

"10. 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 trade mark 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, Sub-Section 1 of 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 un-registered 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 Erven Warnink BV Vs. J. Townend & Sons the modern tort of passing off has five elements i.e. (1) a misrepresentation (2) made by a trader in the course of trade, (3) to prospective customers of his or ultimate consumers of goods or services supplied by him, (4) which is calculated to injure the business or goodwill 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 timet action) will probably do so.
"27.No action for infringement of unregistered trade mark :-- (1)No person shall be entitled to institute any proceeding to prevent, or 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 as the goods of another person or the remedies in respect thereof."

The relevant parts of Section 106 of the Act read as under :--

"106.Reliefs in suits for infringement or for passing off :-