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55. The ingredients as to maintainability of the action of passing off in common law are goodwill/reputation, misrepresentation and the consequential damage or likely damage to the goodwill arising out the misrepresentation. The said passing off remedy has been expressly preserved under Section 27 (2) of the Trade Marks Act, 1999.

56. The legislative intent behind preservation of the passing off remedy is that though the Trade Mark Act provides several kinds of protections by way registration of the trade marks. The rights in common law of the proprietors should remain unaffected. This is due to the reason that the registration of the trade marks is the statutory recognition of the rights pre-existing in common law. The nature of rights under the common law is right to prevent use. Thus, the basic reason behind preservation of the common law right was that the trade marks are conventionally protected under the principles of common law by way of use and the same has been followed from time to time. The said practice of protection has been preserved in the form of passing off action from where the trade mark rights had made their humble beginning.