Factors to be considered upon passing off on the basis of an unregistered

trademark:
The burden of proof under a suit of infringement is not as high as it is under a passing off
action.  Under an action of passing off, the plaintiff will not only have to prove deceptive
similarity but also prove how the defendant's mark is likely to cause confusion among the
public and also has a likelihood of causing injury to plaintiff's goodwill.
1.  The first step to proving passing off is for the plaintiff to establish that the plaintiff
was a prior user of the mark.
2. Another very important ingredient in a passing off action is Misrepresentation.
3. Under a passing off action, establishing goodwill and harm caused or possible harm
that could be caused to the goodwill is a major ingredient.

An unregistered trademark, thus has a higher burden than a registered trademark.