Do the competition law provide any relief for passing off of goods as it is also an unfair trade practice?
1 Reply
AnonymousLLB22 May 2012, 06:45
Per se, competition law regulates restrictive trade practices and not unfair trade practices (which is now covered by Consumer Protection Act but to seek relief under Consumer Protection Act you have to be a consumer). However, my understanding is that if the unfair trade practice itself is distorting or restricting the competition, Competition Act will be applicable. Important thing is that you have to prove that the conduct or practice is falling under one of the 2 categories—Anti-competitive agreement or Abuse of dominant position (Combination doesnt seem to come into picture in case of passing off as such). For Anti-competitive agreement, you have to prove arrangement or understanding between two enterprises which is likely to adversely affect the competition. This may not be possible in case of passing off. For proving Abuse of Dominant Position, you have to prove that the enterprise/person who is passing off the goods is dominant player and by virtue of his dominance he is able to pass off goods of other competitors and harming the fair competition. Both these situations seem quite improbable. Therefore, my understanding suggest that it is better to seek relief under the Trademarks Act which specifically cover remedies and relief for passing off.
1 Reply
Per se, competition law regulates restrictive trade practices and not unfair trade practices (which is now covered by Consumer Protection Act but to seek relief under Consumer Protection Act you have to be a consumer). However, my understanding is that if the unfair trade practice itself is distorting or restricting the competition, Competition Act will be applicable. Important thing is that you have to prove that the conduct or practice is falling under one of the 2 categories—Anti-competitive agreement or Abuse of dominant position (Combination doesnt seem to come into picture in case of passing off as such). For Anti-competitive agreement, you have to prove arrangement or understanding between two enterprises which is likely to adversely affect the competition. This may not be possible in case of passing off. For proving Abuse of Dominant Position, you have to prove that the enterprise/person who is passing off the goods is dominant player and by virtue of his dominance he is able to pass off goods of other competitors and harming the fair competition. Both these situations seem quite improbable. Therefore, my understanding suggest that it is better to seek relief under the Trademarks Act which specifically cover remedies and relief for passing off.
Hope that is helpful…