Chapter IV - Effect of Registration
Section 27
Section 27: an unregistered mark and passing off
A business using an unregistered mark cannot sue for statutory infringement of that mark under the Act. Section 27 preserves a separate passing-off action where one trader presents goods or services as another's.
On this page
Need advice on Section 27?
This article is for general information. Refer to the Trade Marks Act, 1999 official text for the official provisions. If you need professional advice for your situation, contact Bizeneed.
Statutory text
Bare law
(1) No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark.
(2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods of another person or as services provided by another person, or the remedies in respect thereof.
Introduction
Registration status determines whether the statutory infringement cause of action is available; it does not eliminate every remedy for an unregistered brand. A passing-off claim depends on its own facts and evidence and should not be described as automatic protection for any name in use.
Key takeaways
No unregistered-mark infringement suit
Subsection (1) bars a proceeding to prevent or recover damages for infringement of an unregistered mark.
Passing off remains available
Subsection (2) preserves actions and remedies when goods or services are passed off as another's.
Check the real status
An application, advertisement and registration are different stages. Verify the specific mark and covered goods or services on the live register.
Verify registration
Check whether the asserted mark is registered, not merely applied for or advertised, and confirm the registration's owner, classes and status.
Choose the correct legal basis
If the mark is not registered, Section 27(1) prevents a statutory infringement claim for it. Evaluate whether the separate factual elements of passing off can be evidenced.
Preserve market evidence
Records of use, customer recognition, packaging, advertising and alleged confusion may be relevant to a passing-off dispute. The merits depend on the particular facts and applicable court process.
Official sources
Practical checklist
Do
- Check the live register before describing a claim as infringement.
- Preserve dated use and customer-facing material if passing off is in issue.
- Identify the correct legal owner of the mark.
Avoid
- Do not call a pending application a registered mark.
- Do not assume any use of a similar unregistered name proves passing off.
Glossary
- Infringement
- The statutory cause of action concerning a registered trade mark under the Act.
- Passing off
- A distinct action concerning misrepresentation of goods or services as another trader's.
Frequently asked questions
Can an unregistered mark be the basis of a statutory infringement suit?
No. Section 27(1) bars that proceeding.
Is an unregistered brand completely without a remedy?
No. Section 27(2) preserves passing-off actions and remedies where their factual requirements are met.
Need help applying this provision to your situation?
Contact BizeneedLast updated 9 October 2026