Passing off: In the case of unregistered marks and marks which are not registrable the only way they can be protected is by an action for passing off.
The plaintiff will have to prove sufficient use of the mark so as to create valuable goodwill of the business connected with the goods bearing the mark. Criminal action: Criminal action against the infringer is possible whether the mark is registered or unregistered provided the marks are very close. Though men’s intention to deceive need not be proved, evidence of fraudulent intention will be an important factor in favour of the complaint. Service marks: There is now provision for registration of service marks in India under the new Act.
Such marks or names are used by business rendering various kinds of services can, therefore, be protected by action of infringement if registered. The value of a trademark, whether registered or not can be maintained only if the proprietor uses it and takes prompt action against an action for infringement, or passing off or by criminal proceeding If infringement of the mark is not prevented the mark become generic words, i.e. the name of the goods or common to others-A trade as it is called by the use of the mark or a similar mark by an action for infringement well chosen and well protected trademark is the most valuable o property and the strongest.