A trade mark is a sign capable of distinguishing the goods or services of one person from those of another. Registration confers on the proprietor the exclusive right to use the mark in relation to the goods or services for which it is registered, and the right to sue for infringement.
Infringement is committed by a person who, without authority, uses in the course of trade a mark identical with or deceptively similar to the registered mark, in relation to identical or similar goods, where such use is likely to cause confusion on the part of the public or is likely to be taken as indicating a connection with the proprietor. Where both the mark and the goods are identical, confusion is presumed. A mark is deceptively similar to another if it so nearly resembles it as to be likely to deceive or cause confusion; the comparison is made from the perspective of a person of average intelligence and imperfect recollection, looking at the marks as wholes and not by placing them side by side and cataloguing differences.
Certain uses do not infringe. Use of one's own name or the name of one's place of business in good faith is protected, as is use of a mark to describe the character or quality of goods, and use to indicate the intended purpose of goods such as accessories or spare parts, provided such use is honest and does not take unfair advantage of the mark's reputation.
An unregistered mark is not protected by an action for infringement, but its user may sue in passing off. There the claimant must establish goodwill attaching to the mark, a misrepresentation by the defendant likely to deceive, and damage or likelihood of damage. Passing off protects the goodwill; infringement protects the registration.
