Trademark Infringement in India: Meaning, Remedies, and Penalties

Trademark infringement is based on rights in a registered trademark. Passing off is a common-law remedy that can protect an unregistered brand where the claimant can establish the required elements. Section 27 of the Trade Marks Act, 1999 preserves passing-off actions while generally preventing infringement proceedings for an unregistered mark.

For example, if customers recognise a business’s packaging and another seller presents its goods in a way that suggests they come from that business, the absence of registration does not automatically remove every remedy. However, years of trading alone do not prove passing off; evidence must support the legal elements.

Preserve records showing the trademark rights, business history, and disputed use before sending a complaint or responding to one. Evidence should be dated where possible and kept in its original form.

Keep original files and note where each record came from. If you purchase a disputed product, retain the invoice, packaging, and product itself where practical. Evidence helps a lawyer assess the matter but does not guarantee that a claim will succeed.

Some uses can fall outside infringement because the Trade Marks Act contains limits and statutory protections. Sections 30, 34, and 35 address circumstances including honest or descriptive use, vested prior-use rights, and bona fide use of a person’s own name, place of business, or descriptions of goods or services. 

• Descriptive use can be protected where the statutory conditions are satisfied.
• A person with qualifying continuous prior use can have vested rights under Section 34.
• Bona fide use of a person’s own name or business name can be protected under Section 35.
• Use of a mark to identify goods or services can be subject to the conditions in Section 30.

Do not assume that labels such as 'fair use', 'parody', or 'non-commercial use' create automatic exemptions. The actual conduct and statutory conditions must be assessed.

Section 135 provides civil relief in infringement and passing-off suits. Depending on the case, a court can grant an injunction and, at the claimant’s option, damages or an account of profits, with delivery-up of infringing labels and marks for destruction or erasure where appropriate. 

Damages and an account of profits are alternatives at the claimant’s option rather than automatic combined awards. A cease-and-desist letter may seek resolution before litigation. It is not itself a court order, but its allegations and response deadline should be reviewed promptly.

The criminal provisions should be distinguished from a civil infringement claim. Sections 103 and 104 address specified offences involving false trademarks or false trade descriptions, including falsifying or falsely applying a trademark and selling goods or providing services to which a false trademark is applied.

For offences under Sections 103 and 104, the prescribed punishment generally includes imprisonment of six months to three years and a fine of Rs. 50,000 to Rs. 2 lakh. The Act provides statutory defences and permits a court, for adequate and special reasons recorded in the judgment, to impose a sentence below the stated minimum. 

Section 105 provides enhanced punishment for a second or subsequent conviction under Sections 103 or 104: imprisonment of one year to three years and a fine of Rs. 1 lakh to Rs. 2 lakh, subject to the statutory provisos. 

A disagreement over similar branding does not automatically amount to a criminal offence. The conduct must fall within the relevant criminal provision and the required facts and evidence must be established.

Confirm your rights and preserve evidence before contacting the other business. Avoid public accusations until the relevant registration, use, and legal position have been reviewed.

• Confirm the registered owner, registration status, and covered goods or services.
• Save dated evidence of the disputed use before it is changed or removed.
• Gather your own brand-use records, invoices, packaging, advertising, and sales evidence.
• Identify the seller, manufacturer, distributor, advertiser, or other relevant party.
• Ask a trademark lawyer to assess the claim and suitable remedies.
• Retain correspondence, settlement proposals, and any agreed terms.

If an online listing or advertisement is involved, preserve a copy before requesting removal. Otherwise, potentially useful evidence may disappear. The complaint should identify the particular use challenged and the trademark rights relied upon.

Read the notice promptly, preserve relevant records, and arrange a legal review of the allegations. Do not assume the complaint is valid simply because it arrives on legal letterhead, but do not ignore a stated deadline.

• Identify the mark claimed, its registration details, and the goods or services covered.
• Determine exactly which name, logo, packaging, listing, advertisement, or other use is challenged.
• Check the action demanded and the deadline for response.
• Gather naming history, designs, supplier records, invoices, permissions, and prior-use evidence.
• Do not make admissions or accept broad demands before understanding their consequences.
• Keep copies of the notice, your response, and all supporting records.

A proposed brand change can affect packaging, signage, online listings, existing inventory, and customer communications. Establish the practical scope before committing to changes or settlement terms.

Search a proposed name or logo before spending heavily on packaging, signage, inventory, and promotion. Use the official IP India trademark resources to investigate identical and similar marks, including spelling and pronunciation variations.

• Search the proposed mark and relevant similar marks.
• Review the relevant classes of goods and services.
• Check the owner, application or registration status, and available records.
• Keep evidence of the search and the date it was conducted.
• Document the development of the brand, including design work and first use.
• Repeat the review before adding major product categories or entering new markets.

Trademark applications and registrations are linked to specified goods or services. Registration is generally valid for ten years and can be renewed for further ten-year periods under the Trade Marks Act. A search can identify issues worth investigating, but it does not guarantee that a brand cannot be challenged.

Trademark searches, legal advice, packaging changes, brand redevelopment, and other business expenses can create costs for an established business. Where a genuine funding requirement arises, an eligible business can consider a Bajaj Finance Business Loan for legitimate business expenses, subject to applicable eligibility and loan terms.

It offers: 

• Loan amounts from Rs. 2 lakh to Rs. 80 lakh.
• Repayment tenures from 12 months to 96 months.
• Interest rates from 14% to 23.50% per annum, subject to applicable terms.
• Processing fee up to 4.72%, inclusive of applicable taxes.

Business loan eligibility includes Indian self-employed applicants, business vintage of at least 3 years, a CIBIL score of 650 or higher, and an age range of 21 to 80 years subject to applicable maturity conditions. It does not require collateral or security. 

A trademark dispute does not create loan eligibility. Before borrowing, assess the actual expense, repayment capacity, cash flow, and total borrowing cost. Do not take financing simply because a legal dispute exists.

• Click the 'Check Loan Offer' button to open the online application form.
• Enter basic details, including Name, PAN, Date of Birth, PIN Code, and Business details, and click 'CONTINUE'.
• Complete banking verification and continue.
• View your offer details, select the loan type — Term Loan, Flexi Dropline Loan, or Flexi Hybrid Loan — and choose the repayment tenure.
• Review the details and submit the business loan application.