PROTECTING ORPHAN RIGHTS: THE ROLE OF PASSING OFF IN SECURING UNREGISTERED AND UNREGISTRABLE INTELLECTUAL PROPERTY RIGHTS

Abstract

While intellectual property law primarily protects registered rights, many valuable assets—such as unregistered trademarks, trade dress, character merchandising, and goodwill in geographical indications remain outside statutory frameworks. These “orphan rights” play a vital role in preserving market identity and consumer trust but are often vulnerable to exploitation due to their unregistered status. This paper examines the common law tort of passing off as a key remedy for protecting such rights. Passing off prevents misrepresentation and consumer confusion, thereby safeguarding the goodwill associated with unregistered intellectual property. Employing the doctrinal method of research, the study draws on statutes, judicial decisions, and scholarly commentary to assess how passing off can shield unregistered marks, deter imitation of trade dress and designs, and address misuse in character merchandising and geographical indications. It also evaluates the limitations of the tort, particularly in light of digital commerce and globalization. The paper concludes that passing off remains essential for bridging gaps in statutory protection and recommends a more integrated approach that combines common law and legislative mechanisms to enhance protection for orphan rights.