Trademark Infringement in India — What it Means, Legal Remedies and How to Sue

Your registered trademark gives you the exclusive right to use it for the goods and services in your registration. When someone else uses an identical or deceptively similar mark, they are infringing your trademark. India's Trade Marks Act, 1999 provides strong civil and criminal remedies for trademark infringement. Here is what you need to know.

What is Trademark Infringement?

Under Section 29 of the Trade Marks Act, 1999, trademark infringement occurs when a person (other than the registered owner) uses a mark in the course of trade that is:

• Identical to the registered trademark and covers the same goods/services (classic infringement)
• Similar to the registered trademark and covers identical or similar goods/services, causing likelihood of confusion
• Identical or similar to a well-known trademark, even for dissimilar goods (if it takes unfair advantage or is detrimental to the trademark's distinctive character)

Trademark infringement can only be claimed if your trademark is registered. For unregistered marks, the remedy is "passing off" (see below).

Passing Off — Protection for Unregistered Trademarks

Passing off is a common law tort that protects goodwill in an unregistered mark. To succeed in a passing off action, you must prove: (1) you have acquired goodwill and reputation in the mark through use, (2) the defendant has made a misrepresentation causing confusion, and (3) you have suffered or are likely to suffer damage. Passing off claims are harder to prove than infringement claims — another reason to register your trademark promptly.

Civil Remedies for Trademark Infringement

A trademark owner can file a civil suit (typically in the District Court or High Court depending on the value of the suit) seeking:

• Injunction: An order stopping the infringer from using the trademark — including an urgent ex-parte interim injunction granted without hearing the other side in emergency cases
• Damages or account of profits: Compensation for losses suffered due to infringement or the profits made by the infringer
• Delivery up: Seizure and destruction of infringing goods, labels and packaging
• Anton Piller Order: A search and seizure order allowing the plaintiff to enter the infringer's premises and seize infringing goods before they can be destroyed

Criminal Remedies

Trademark infringement is also a criminal offence under Section 103-104 of the Trade Marks Act. Criminal complaints can be filed before the Judicial Magistrate. The penalties include imprisonment up to 3 years and fines up to ₹2 lakh. Police can also conduct raids on manufacturing or storage locations. Criminal proceedings are particularly effective against counterfeiters.

Cease and Desist Letter

Before litigation, a well-drafted cease and desist letter from a legal professional is often effective — particularly for smaller infringers who may not be aware of your trademark. The letter notifies the infringer of your registered rights and demands that they stop using the infringing mark immediately. Many infringement disputes are resolved at this stage without court intervention.

Conclusion

Trademark infringement undermines your brand value and customer trust. India's IP laws provide strong remedies — but acting quickly and having a registered trademark in place is essential. SPOTON helps Kerala businesses register, protect and enforce their trademarks. Contact us for trademark registration and brand protection services.