Covers registering and enforcing your own trademark against copying or counterfeiting, and what to do if you are accused of selling or using an infringing mark, including a raid, notice, or civil or criminal case.
1. Search before you file
Before applying, search the IP India Trade Marks public search database for identical or deceptively similar marks already applied for or registered in the goods/services class you need. This does not guarantee approval, but it substantially reduces the chance of an objection or opposition later.
2. Identify the correct class
Every application must specify at least one class under the Nice Classification, adopted in India via Rule 22 of the Trade Marks Rules, 2017 (Classes 1-34 cover goods, 35-45 cover services). Registration only protects the mark within the class(es) actually filed.
3. File Form TM-A
File online through the IP India e-filing portal, declaring the applicant category (individual, DPIIT-recognised startup, Udyam-registered small enterprise, or other) and, if claiming earlier use, the date use began. The government fee is Rs.4,500 per class for an individual, startup, or small enterprise, and Rs.9,000 per class for everyone else, under the current fee schedule in the Trade Marks Rules, 2017.
4. Respond to examination objections
The Registrar examines the application for distinctiveness and conflicts with existing marks. If an objection is raised, a written reply (and sometimes a show-cause hearing) is needed within the notified deadline, or the application can be treated as abandoned.
5. Journal publication and the 4-month opposition window
Once accepted, the mark is advertised in the Trade Marks Journal. Under Rule 43 read with Section 21, any person may file a notice of opposition on Form TM-O within 4 months of that publication -- this window is non-extendable, and the person opposing does not need to already own a registered mark or show any personal commercial interest.
6. Registration and renewal
If unopposed (or if an opposition is decided in the applicant's favour), a registration certificate is issued. Registration is valid for 10 years from the application date and can be renewed indefinitely in further 10-year terms; missing renewal can result in the mark being removed from the register.
7. If someone copies your registered mark: civil infringement suit
Under Sections 134-135 of the Trade Marks Act, 1999, a suit for infringement of a registered mark must be filed in a District Court (not any lower court) with jurisdiction over where the plaintiff resides or carries on business. The court can grant an interim or permanent injunction, damages or an account of the infringer's profits, and an order for delivery-up or destruction of the infringing goods and packaging.
8. If your mark is unregistered: a passing-off action
Section 134 itself preserves the common-law remedy of passing off for a mark 'whether registered or unregistered' -- so an unregistered mark that has built up real reputation and goodwill can still be defended in the same District Court, though the case then turns on proving that reputation and a likelihood of deception, rather than simply pointing to a registration certificate.
9. If your mark is being counterfeited: the criminal route
Falsifying a trademark or falsely applying it to goods (Section 103), or selling/possessing goods bearing a falsely applied mark (Section 104), are cognizable offences. A police officer of at least Deputy Superintendent rank can search and seize the goods and the equipment used to make them without a warrant; the seized articles must be produced before a Judicial Magistrate. Courts have taken differing views on whether the officer must first obtain the Registrar of Trade Marks' opinion before acting, so this is genuinely contested rather than settled either way.
10. If you are accused of selling counterfeit or infringing goods
Gather purchase invoices, GST records, and any distributor or manufacturer authorisation showing where the goods genuinely came from -- this documentation is the standard way to show the goods were sourced in good faith rather than knowingly counterfeited, and is central to how such cases are actually contested in practice.
11. If your goods have already been seized
Under the proviso to Section 115(4), anyone with an interest in seized goods may apply to the Judicial Magistrate within 15 days of the seizure for the goods to be returned; the Magistrate decides after hearing both the applicant and the prosecution. If the matter also leads to an arrest, the general safeguards that apply to any arrest without a warrant are a separate topic -- see Aadhrix's dedicated route on arrest procedure for that.
IP India Trade Marks e-Filing Portal (apply, track status, file opposition): https://ipindiaonline.gov.in/trademarkefiling/user/frmLoginNew.aspx
Handled by: Trade Marks Registry, IP India (registration/opposition) -> District Court (civil infringement/passing off) -> police + Judicial Magistrate (criminal enforcement)
Who can use this: Anyone wanting to register or enforce their own trademark or trade name, and anyone accused of infringing, counterfeiting, or selling goods bearing someone else's mark, including shopkeepers, distributors, and small manufacturers.
This does not cover: Does not cover copyright, patent, industrial design, or geographical indication disputes -- each has its own separate Act and process. Does not explain arrest-without-warrant procedure in detail (search/seizure timing, rights on arrest, remand) -- that is covered by Aadhrix's separate 'arrest_without_warrant_rights' route, referenced only briefly here. Does not give an opinion on whether a specific mark is likely to be confused with another, or predict the outcome of a case.
Time limit: Opposition to a published application: 4 months from the date of Journal publication, non-extendable. Application to recover seized goods: 15 days from the date of seizure, to the Judicial Magistrate. (Trade Marks Rules, 2017, Rule 43 (opposition); Trade Marks Act, 1999, s.115(4) proviso (seized goods))
Cost: Registration: Rs.4,500/class (individual/startup/small enterprise) or Rs.9,000/class (others). Opposition/civil suit carry separate fees; a criminal complaint via police is free.
You'll need:- The exact mark (word, logo, or both) and the goods or services it covers
- The date you first started using the mark commercially, if claiming prior use
- Applicant category for fee purposes (individual, DPIIT-recognised startup, Udyam-registered small enterprise, or other)
- If accused: where and from whom the goods were purchased, and any date of first use of your own mark or name
Documents that help:- A clear image or specimen of the mark/logo
- Proof of applicant category (Udyam certificate or DPIIT startup recognition, if claiming the reduced fee)
- Purchase invoices, GST records, and distributor/manufacturer authorisation letters (if accused of selling infringing or counterfeit goods)
- Evidence of your own prior commercial use, such as invoices, packaging, or advertising bearing the mark
- Any cease-and-desist notice, FIR copy, or seizure memo received
What happens after: A registered mark can be renewed every 10 years indefinitely. An opposed application proceeds to evidence and a hearing before the Registrar, with an appeal available to the High Court. A civil suit proceeds through the District Court like any other civil case, often starting with an application for an interim injunction. A criminal complaint proceeds through investigation, and if goods were seized, through the Magistrate's own release/retention order, before any trial.
These are the remedies Indian law provides for this kind of situation -- not a recommendation, and not every remedy will apply to your own facts.
Civil suit for infringement
District Court (or higher, per Section 134 jurisdiction rules)
Available to the owner of a registered trademark under Sections 134-135 against another party's identical or deceptively similar use. The court may grant an injunction, damages or an account of the infringer's profits, and an order for delivery-up or destruction of infringing goods and materials.
Passing-off action
District Court
A common-law remedy preserved by Section 134 for an unregistered mark or trade name with established reputation. It requires showing goodwill in the mark, a likelihood of the defendant's use deceiving customers, and resulting or likely damage.
Criminal complaint for falsifying or falsely applying a trademark
Police (Sections 103-105) with production before a Judicial Magistrate
A cognizable-offence complaint against a person falsifying a mark, falsely applying it to goods, or selling/possessing goods bearing a falsely applied mark. It can result in police search and seizure, and on conviction, imprisonment and a fine, with an enhanced minimum sentence and fine on a repeat conviction.
Notice of opposition to a pending application
Registrar of Trade Marks (Form TM-O)
Available to any person, without needing to show a personal interest, to challenge a trademark application within 4 months of its publication in the Trade Marks Journal, on grounds such as similarity to an existing mark or lack of distinctiveness.
Application for release of seized goods
Judicial Magistrate of the first class / Metropolitan Magistrate
Available to a person with an interest in goods seized during a trademark-related search, under the proviso to Section 115(4), to seek their return within 15 days of the seizure, with the Magistrate deciding after hearing both sides.
Rectification or removal of a registered mark
Registrar of Trade Marks or the relevant High Court
Available to an aggrieved person to have a conflicting registered mark removed for continuous non-use under Section 47, or to have the register otherwise rectified under Section 57 where the registration was wrongly made or is being improperly maintained.
Judicial test for deceptive similarity
Applied by the District Court in an infringement or passing-off suit
In Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73, the Supreme Court laid down the factors courts must weigh in deciding whether two marks are deceptively similar -- including the nature of the marks, the class of purchasers, and the mode of purchase -- a test still applied in nearly every Indian trademark dispute today.
Do I need to register my trademark to have any legal rights over it?
No. Registration gives you stronger, easier-to-enforce statutory rights under Sections 134-135, but Section 134 itself also preserves the common-law 'passing off' remedy for an unregistered mark that has built up real reputation. Registration is still strongly advisable because it removes the need to separately prove that reputation every time.
How long does registration actually take, and what does it cost?
A straightforward, unopposed application commonly takes well over a year from filing to certificate, since the process includes examination, a mandatory 4-month opposition window after Journal publication, and processing time on either side. The government fee is Rs.4,500 per class for an individual, DPIIT-recognised startup, or Udyam-registered small enterprise, and Rs.9,000 per class for others.
Can someone oppose my application even if they don't own a similar mark?
Yes. Section 21 allows 'any person' to file an opposition -- the opponent does not need to be a prior registered owner or show a personal commercial stake. This is deliberately broad, on the reasoning that keeping the register free of confusing marks serves the public generally, not just competitors.
What is the real difference between 'infringement' and 'passing off'?
Infringement (Sections 134-135) is a statutory remedy available only to the owner of a registered mark, based on comparing the two marks and the classes they cover. Passing off is an older, common-law remedy available even without registration, but it requires proving three things: that you have real goodwill in the mark, that the other party's use is likely to deceive customers, and that this is causing or is likely to cause you damage.
I received a legal notice accusing me of infringing someone's trademark. What should I do first?
Do not ignore it, and do not assume it is automatically valid. Check whether the mark named in the notice is actually registered (or in genuine, provable use) for the same class of goods or services as yours, and gather your own invoices, sourcing records, and any authorisation showing where your goods or branding came from, before responding or consulting an advocate.
The police raided my shop over branded goods they called fake. What are my options?
Under Sections 103-105, this is treated as a cognizable offence, meaning the police can act without first getting a magistrate's warrant. Your strongest practical response is documentation: purchase invoices, GST records, and any distributor or manufacturer authorisation showing you sourced the goods in good faith rather than knowingly dealing in counterfeits.
Can I get goods that were seized in a trademark raid back?
Yes, potentially. Under the proviso to Section 115(4), anyone with an interest in the seized goods can apply to the Judicial Magistrate within 15 days of the seizure asking for them to be returned. The Magistrate decides after hearing both sides, so there is no automatic right to get them back, but the application itself is a real, time-limited option.
Is a trademark criminal case bailable or not?
This has genuinely been decided differently by different courts. Offences under Sections 103-105 carry a maximum sentence of 3 years, and some High Courts (including the Bombay High Court) have held that offences with a maximum of exactly 3 years are non-bailable, while other rulings have taken a different view. Do not assume either way without checking the current position in your own jurisdiction.
What if I sold counterfeit goods without knowing they were fake?
Lack of knowledge and genuine good-faith sourcing are central to how these cases are actually defended in practice -- courts have recognised a due-diligence style defence for company officers under Section 114, and invoices/distributor authorisation showing bona fide purchase are the standard evidence used to support this kind of defence generally. This is a factual defence to be raised in your case, not an automatic exemption.
Can I file both a civil suit and a criminal complaint over the same infringement?
Yes. The civil route (injunction, damages, account of profits under Sections 134-135) and the criminal route (a police complaint under Sections 103-105) are separate and can be pursued at the same time, since they serve different purposes -- one compensates and stops the infringer, the other punishes them.
Does my Indian trademark registration protect me outside India?
No. A trademark registered under the Trade Marks Act, 1999 only gives you rights within India. Protection in another country requires a separate application there, or an international filing under the Madrid Protocol naming that country, which India is a member of.
What happens if someone already has a registered mark similar to what I want to use, but they aren't actually using it?
You may be able to apply under Section 47 to have their mark removed from the register for continuous non-use (generally a period of over 5 years and 3 months without genuine use), or seek broader rectification under Section 57 if the registration was wrongly granted. This does not automatically clear the way for your own mark, but it is a real, separate remedy worth checking before assuming you are blocked.
Governing law: Trade Marks Act, 1999; Trade Marks Rules, 2017
Source: Cross-verified against the bare text of ss.21, 47, 57, 103-105, 114, 115, 134-135 and the Trade Marks Rules, 2017 (IP India/WIPO Lex). Whether a police officer must obtain the Registrar's opinion before search/seizure under s.115(4), and whether s.103/104 offences are bailable, are both genuinely unsettled in case law (courts have gone both ways) rather than confirmed one way -- disclosed rather than asserted. No specific toll-free helpline number could be independently confirmed from the official IP India site, so none is given.
Aadhrix does not decide which route applies to you. This describes the official process as published — consider an advocate for advice specific to your situation.