Trademark infringement: remedies under the Trade Marks Act, 1999

What is trademark infringement?

Under Section 29 of the Trade Marks Act, 1999, a registered trademark is infringed when a person who is not the proprietor or a permitted user uses, in the course of trade, a mark that is identical with or deceptively similar to the registered mark, in a way that is likely to cause confusion or, in some cases, takes unfair advantage of a well-known mark.

Courts consider factors such as the similarity of the marks, the nature of the goods or services, the class of buyers and how the goods are sold. The question is whether an average consumer with imperfect recollection is likely to be confused.

Infringement vs passing off

An infringement action is a statutory remedy available only for registered trademarks. A passing off action is a common-law remedy that protects the goodwill attached to a mark, whether or not it is registered; Section 27 of the Act preserves this right.

In passing off, the claimant must generally show goodwill, misrepresentation by the defendant, and resulting damage or likelihood of damage. Registration makes enforcement considerably easier, which is one reason registration is advisable.

Civil remedies

Under Section 135, the relief a court may grant in a suit for infringement or passing off includes:

• Injunction: an order restraining further use, including interim injunctions at the start of the case where urgency is shown.
• Damages or an account of profits: at the claimant's option, compensation for loss or the profits made by the infringer.
• Delivery up: of infringing labels and marks for destruction or erasure.

Courts may also make orders for the preservation of evidence and, in appropriate cases, appoint local commissioners to seize infringing goods.

Criminal remedies

The Act also creates offences. Falsifying a trademark or falsely applying it to goods or services is punishable under Section 103, and selling goods or providing services with a false trademark under Section 104, with imprisonment of not less than six months, which may extend to three years, and a fine, subject to the court's power to reduce the sentence for adequate reasons. Criminal remedies are typically used against counterfeiting.

Where to file

Under Section 134, a suit for infringement can be filed in a District Court having jurisdiction, which includes the court within whose jurisdiction the proprietor actually and voluntarily resides or carries on business. Many trademark disputes are commercial disputes under the Commercial Courts Act, 2015, which affects procedure and timelines.

First steps if your mark is being copied

1. Collect evidence of the infringing use, such as products, packaging, invoices, screenshots and dates.
2. Gather proof of your own use and reputation, such as sales figures, advertising and registration certificates.
3. Check whether the other party has applied to register the mark, as an opposition may be possible.
4. Consider a carefully worded cease and desist notice.
5. Act promptly, as delay can weaken a claim for interim relief.

Well-known trademarks

The Act gives additional protection to well-known trademarks, meaning marks that have become known to a substantial segment of the public. Such marks can be protected even against use on dissimilar goods or services where that use would take unfair advantage of, or be detrimental to, the mark's distinctive character or reputation. A mark may be recognised as well known by a court or by the Registrar.

Building your evidence

Strong evidence makes a significant difference, especially when seeking an interim injunction. Useful material typically includes:

• registration certificates and the current status of the mark on the register;
• evidence of first use and continuous use, such as dated invoices and packaging;
• sales figures and advertising expenditure over the years;
• press coverage, awards and social media presence;
• samples or screenshots of the infringing use, with dates; and
• any instances of actual confusion, such as misdirected customer queries.

Frequently asked questions

This explainer is general information as of November 2026 and is not legal advice. It does not create an advocate-client relationship. Please seek advice on the specific facts of your matter.