The user of an unregistered trademark is barred from instituting an infringement action. However, if the mark in question has become well known in India, the user of such a trademark is not without recourse and may seek a remedy by means of a passing off action.

In a passing off action, the plaintiff must establish that the mark, name or get-up - the use of which by the defendant is subject of the action - is distinctive of his goods in the eyes of the public or class of public and that his goods are identified in the market by a particular mark or symbol. Also, a passing off suit can be converted into a combined action of infringement and passing off, if the registration of the trademark is obtained before the final hearing of the passing off suit.