From Pavements to Pixels: The New Frontline of Brand Protection
Once, protecting your brand meant scanning bustling marketplaces for counterfeit handbags or fake watches. Today, the battleground has shifted online.
The infringers aren’t street hawkers—they are anonymous seller accounts. The sales pitch isn’t whispered in a bazaar—it’s blasted through influencer reels, sponsored ads, and algorithm-friendly hashtags.
On platforms like Amazon, Flipkart, Instagram, and Facebook, the speed and scale of misrepresentation is staggering. You might wake up to a spike in sales traffic, only to discover it’s directed at a counterfeit seller hawking “your” bestselling serum at a 90% discount—leading to customer dissatisfaction, complaints, and potential health risks. Welcome to the era of digital passing off.
What Is “Passing Off” in the Digital Age?
Traditionally, passing off is a legal principle designed to protect a brand’s reputation or goodwill. It prevents others from misrepresenting their goods or services as yours, unfairly benefiting from your established brand.
In India, passing off is a common law tort, and its classic test comes from Reckitt & Colman Products Ltd. v. Borden Inc. (1990), known as the “classic trinity”:
- Goodwill of the plaintiff
- Misrepresentation by the defendant causing public confusion
- Damage to the plaintiff’s goodwill
In the digital landscape, the definition has expanded. Fake Instagram sellers, shady Amazon vendors, and unauthorized online retailers can replicate your brand identity, confuse customers, and cause reputational harm—often in ways that are hard to trace.
Case in Point:
In Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. (AIR 2001 SC 1952), the Supreme Court outlined the test for deceptive similarity in medicinal products. Today, this principle applies to e-commerce listings and social media promotions, where even minor visual or phonetic similarities can mislead consumers.
Proactive Steps to Protect Your Brand
Sitting back is no longer an option. Here’s how to actively safeguard your brand identity online:
1. Register Your Trademarks
Your first and strongest defense. Protect your brand name, logo, and distinctive packaging—not just in India, but also in major e-commerce markets. Without a registered trademark, your takedown rights are limited.
2. Enroll in Amazon Brand Registry
This platform provides control over listings, reporting tools, and the ability to remove infringing sellers. You can also create an “A+ Content” page to reinforce authenticity and tell your brand story.
3. Use Instagram’s Brand Rights Tools
Meta provides tools to report IP infringements and remove counterfeit content or impersonation accounts. Regular monitoring of tags and suspicious accounts is essential.
4. Educate Your Customers
Help your audience distinguish genuine products from fakes:
- Share verified links
- Highlight fake accounts in stories
- Create “How to Spot Fakes” guides
5. Act Swiftly with Legal Tools
Start with a cease-and-desist notice. For repeated or large-scale infringements, escalate to trademark law actions or passing off claims. The sooner you act, the stronger your case.
Intellectual Property (IP) Lawyer in BTM Layout Bangalore
The Scope of Brand Protection
Brand protection goes beyond trademarks. It includes:
- Trademark Protection: Names, logos, and distinctive marks
- Trade Dress Protection: Product appearance, shape, packaging, and colors
- Domain Name Protection: Preventing cybersquatting and unauthorized registrations
- Anti-Counterfeiting Measures: Combating imitation products
- Unfair Competition Prevention: Stopping practices that confuse consumers
Notable Cases:
- Nestle India Ltd. vs. Mood Hospitality Pvt. Ltd. (2022): Reinforced trans-class protection for well-known marks.
- Tata Sons Ltd. vs. Manoj Dodia & Ors. (2011): Set precedents in domain name disputes and cybersquatting.
Brand Protection Mechanisms
1. Civil Remedies (Trade Marks Act, 1999)
- Permanent Injunction: Stop infringing use permanently
- Interim Injunction: Immediate relief pending trial
- Damages & Account of Profits: Monetary compensation and recovery of profits made by infringers
- Delivery Up & Destruction: Surrender and destruction of infringing goods
2. Criminal Remedies
- Section 135, Trade Marks Act: Penalties include imprisonment (6 months–3 years) and fines (₹50,000–₹2,00,000) for counterfeiting.
3. Administrative Actions
- Customs Enforcement: Prevent import of counterfeit goods
- Police Action: File complaints for criminal prosecution
- Enforcement Directorate: For cases with significant financial implications
The Takeaway
In today’s digital economy, passing off isn’t about roadside counterfeits anymore. It’s a frontline defense against algorithm-driven brand hijacking. Indian courts are adapting old principles to the new realities of online marketplaces, social media, and domain name disputes.
To safeguard your brand:
- Register and monitor your IP
- Act quickly against infringers
- Engage customers to distinguish genuine from fake
- Leverage both platform tools and court remedies
Protecting your brand today isn’t just about fighting counterfeits—it’s about preserving trust, authenticity, and credibility, the very foundation of your business.
Disclaimer: This blog is for general informational purposes only and does not constitute legal advice. Privacy laws may vary based on circumstances and jurisdiction. Readers are advised to consult a qualified legal professional, such as Bisani Legal, for specific advice regarding data protection, privacy rights, or related legal concerns.
Published by: Mr. Saket bisani
Date: 15/10/2025
