In a passing off action, the plaintiff is required to establish that the misrepresentation made by the defendant in the course of the trade via the impugned marks is calculated to injure or damage its goodwill, which could be actual or a foreseeable consequence of the defendant’s actions. The misrepresentation need not be fraudulent. The tort of passing off i.e. deception / misrepresentation is agnostic to the intent of the defendant.

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