Trademark infringement in India: how to prove it and what remedies you get

Hire Your Detective editorial teamUpdated 21 October 20268 min read

What is trademark infringement and passing off?

Infringement is a statutory claim. Under s.29 of the Trade Marks Act, 1999, a registered trade mark is infringed by a person who is not the proprietor or a permitted user and who uses, in the course of trade, a mark identical with or deceptively similar to it, for goods or services in a way that is likely to cause confusion. For well-known marks and marks with a reputation in India, s.29(4) extends protection even to dissimilar goods where the use takes unfair advantage of, or harms, the mark's distinctive character or repute.

Passing off is a common-law claim preserved by s.27(2). It protects goodwill, so it works even for unregistered marks, trade dress and get-up. The classic elements are goodwill in your mark, a misrepresentation by the defendant that leads the public to believe its goods are yours, and damage or likely damage. In Laxmikant V. Patel v. Chetanbhai Shah (2002), the Supreme Court confirmed that passing off can be restrained even where the defendant's business is new.

Most suits plead both. This guide covers the legal claim; finding fakes in markets and online is explained in our guide to counterfeit products and brand protection.

Infringement vs passing off: the key differences

The Supreme Court explained this distinction in Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories (1965) and Ruston & Hornsby v. Zamindara Engineering (1970).

How to prove trademark infringement

Courts compare the marks as a whole, looking at visual, phonetic and structural similarity, the nature of the goods, the class of buyers and how the goods are bought. The test is the impression on an average buyer with imperfect recollection, not a side-by-side expert check. In Cadila Healthcare v. Cadila Pharmaceuticals (2001), the Supreme Court set out these factors and said a stricter standard applies to medicines, where confusion can harm health.

Build your evidence in this order:

1. Title. Registration certificates with the current status from the Trade Marks Registry, and any assignments or licences.
2. Your use. Earliest invoices, packaging over the years, advertising, website archives. For passing off, this is the case.
3. Reputation. Sales figures certified by a chartered accountant, advertising spend, media coverage, awards, social-media following.
4. The defendant's use. Test purchases with invoices, photographs of products and shops, screenshots of listings and websites with dates, GST and company details.
5. Confusion. Customer complaints, misdirected orders or reviews, distributor statements. Actual confusion is not required but is persuasive.
6. Dishonesty. Evidence that the defendant knew your mark (ex-employee, former distributor, copied packaging). Copying intent strongly influences courts.

Digital evidence needs a BSA s.63 certificate when filed in court.

What should a trademark infringement legal notice contain?

A cease-and-desist notice is usually the first step, and many disputes settle at this stage. A well-drafted notice from a lawyer typically includes:

• The proprietor's details and the registration numbers, classes and dates of the marks.
• History and scale of use, briefly.
• The infringing mark, products, places of sale and listings, with dates.
• The legal basis: infringement under s.29 and passing off.
• Specific demands: stop use, withdraw stock and listings, withdraw any trade mark application, disclose sales, deliver up infringing material, give a written undertaking.
• A reasonable deadline and notice that legal proceedings will follow.

Be careful with threats. Section 142 lets a person aggrieved by groundless threats of infringement proceedings sue for a declaration and damages. Don't send notices to a competitor's customers alleging infringement unless your case is solid. Where speed matters, you may skip the notice entirely so the defendant cannot hide stock before a seizure order.

What are the remedies for trademark infringement in India?

Section 135 provides civil reliefs: an injunction (interim and permanent), damages or an account of profits (at the plaintiff's option), and delivery up of infringing labels and marks for destruction. Courts can also grant ex parte orders to preserve evidence and attach assets. In Midas Hygiene Industries v. Sudhir Bhatia (2004), the Supreme Court said that in clear cases of infringement an injunction should normally follow, and delay alone is not a bar.

Courts in India, particularly the Delhi High Court, grant Anton Piller-type orders, appointing a local commissioner to visit the defendant's premises without notice and seize or inventory infringing goods and records. Where infringers are many and unidentified, courts issue John Doe or Ashok Kumar orders against unnamed defendants.

Most trade mark suits are commercial disputes under the Commercial Courts Act, 2015. Section 12A requires pre-institution mediation unless the suit seeks urgent interim relief; the Supreme Court in Patil Automation v. Rakheja Engineers (2022) held this mandatory where it applies. Costs and duration vary widely by court and how hard the defendant fights.

What is the punishment for trademark infringement?

Criminal liability arises for applying a false trade mark (s.103) and selling goods or providing services with a false trade mark (s.104). Each carries imprisonment of six months to three years and a fine of Rs 50,000 to Rs 2 lakh; under s.105, a second or subsequent conviction carries one to three years and a fine of Rs 1 lakh to Rs 2 lakh. These offences are cognizable, and police search and seizure requires an officer not below DSP rank who must first take the Registrar's opinion (s.115(4)).

Criminal action suits blatant counterfeiting. For a rival using a similar but not identical brand name, civil proceedings are usually the right and fairer route. Using criminal process to pressure a civil competitor can backfire; see our guide on false cases and false FIRs.

What kinds of trademark infringement cases are common in India?

• Look-alike brand names in FMCG, pharma and food, where one or two letters are changed.
• Copied trade dress: colour scheme, bottle shape, label layout.
• Ex-distributors or franchisees continuing to use the mark after termination.
• Domain names and social handles using the brand to divert customers. These also raise impersonation and fraud issues covered in our guide to finding who is behind a fake account.
• Marketplace sellers using the brand in listings or keywords.

Before you sue, check the defendant's real identity, entity type and assets so any decree can be enforced. Our guides to verifying a company and due diligence explain the public records involved.

How does an investigator support a trademark case?

Lawyers need admissible facts: who is behind the infringing business, where goods are made and stored, the scale of sales, and documented test purchases. A verified investigator can gather these lawfully through public records, market enquiries and open-source research, and can testify about purchases they made. Our corporate investigation service connects brand owners and law firms with experienced professionals.

Bottom line

Register your marks, document your use and reputation, and collect clean evidence of the defendant's use before you act. Choose between a notice, a civil suit with interim relief, or a criminal complaint depending on how blatant the copying is. Strong evidence of dishonest intent and likely confusion is what wins.

This guide is general information, not legal advice. Laws and procedures change, and every case is different — speak to a lawyer about your situation. In an emergency, call 112.