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Infringement or passing off?
Infringement is the statutory action and it needs a registration. Passing off is the common law action and it does not. They are pleaded together, but they are not equally easy to win.
| Infringement | Passing off | |
|---|---|---|
| Basis | Section 29 of the Trade Marks Act, 1999 | The common law, preserved by section 27(2) |
| Who can bring it | The proprietor of a registered mark, and a registered user | Anyone with goodwill in a mark, registered or not |
| What you have to prove | Your registration, and use of an identical or deceptively similar mark of the kind section 29 covers | Goodwill and reputation, a misrepresentation, and damage. All three, from scratch |
| What the register does for you | It proves your title and your rights | Nothing. Every element is evidence |
| Where a licensee stands | A registered user's position is on the register. Under section 53 a permitted user who is not a registered user has no infringement action of his own | Depends on whose goodwill it is |
| Practical difficulty | Lower | Higher, and slower |
This is the clearest argument for registering in the first place. If the mark is unregistered, you are in passing off, and you spend the case proving things the register would have proved for you. If your mark has lapsed, the same applies, and the fix is the renewal or restoration window.
Check your own position first
A cease and desist notice is an invitation to the other side to examine your registration. Assume they will.
Four checks, in order:
| Check | Why it matters | If it fails |
|---|---|---|
| Is the mark registered and live? | Section 29 belongs to the proprietor of a registered mark. A lapsed mark leaves you with passing off only | Renew or restore first, or pitch the notice on passing off |
| Have you actually used it, with documents? | A mark unused for a continuous period of five years or more is exposed to removal under section 47 | Build the use file before you write to anybody |
| Is the registration itself sound? | A defendant who pleads invalidity in a suit can invoke section 124: the court frames the issue and stays the suit while the rectification is decided | Expect delay, and price the dispute accordingly |
| Is the other side's mark pending or registered? | A letter does not stop the Registry. A pending application needs an opposition, a registration needs a rectification | Pair the notice with the Registry proceeding |
That last check is the one that changes the plan. Where the copycat has a pending application, the four-month opposition window is running whether or not you send a letter. Where they already have a registration, the notice alone achieves nothing at the Registry and you need a rectification.
We check your registration status, renewal position and use record before any notice is drafted, because the reply will test all three. Where what has been copied is your artwork rather than your name, see logo registration for what a registered device mark stops.
What a notice can ask for
A notice works when the demands are specific and the deadline is real. Typical demands:
- Stop using the mark, and withdraw stock, packaging, signage and printed material.
- Take down listings, advertisements, website content and social profiles using the mark.
- Transfer or delete an infringing domain name or social handle.
- Give a written undertaking not to resume.
- Account for sales made under the mark, where damages are being pursued.
- Confirm compliance in writing within a stated number of days.
Where the infringement is on a marketplace or a social platform, the notice is usually paired with a complaint to the platform under its own process. Platform routes are quicker than court and they do not decide your rights, so treat them as containment rather than resolution, and keep the dated evidence you collected before the listing disappears.
Enforcement fees
A cease and desist notice carries no government fee. The Registry fees on this page only arise if you pair the notice with an opposition or a rectification.
Government fee (First Schedule, Trade Marks Rules, 2017)
| Item | E-filing | Physical filing |
|---|---|---|
| Cease and desist notice | No government fee | No government fee |
| Notice of opposition against the other side's pending application, Form TM-O | ₹2,700 per class | ₹3,000 |
| Rectification against the other side's registration, Form TM-O | ₹2,700 per class | ₹3,000 |
| Renewal or restoration of your own mark, Form TM-R | ₹9,000 to ₹18,000 per class, by window | ₹10,000 to ₹20,000 |
Professional fee
| Service | Regikart fee |
|---|---|
| Position assessment: register check, use file review and the other side's records | Fee on quote |
| Cease and desist notice, drafted and signed by an advocate we work with | Fee on quote |
| Opposition or rectification against the other side | Fee on quote |
Professional fees exclude GST at 18%. Government fees, where they apply, are paid at actuals to the department and are shown separately. Fees verified on 22 September 2026.
Third-party costs we do not quote: court fees and process fees, which vary by court; advocates' fees for court proceedings; investigation or trap purchase costs; and any publication cost. These are billed at actuals or directly by the provider.
What a court can give you, and what the police can do
Two tracks run in parallel. The civil suit protects your commercial position. The criminal provisions bite on counterfeiting.
Civil, under sections 134 and 135
- The suit goes to a District Court or above, and can be filed in a District Court within whose limits you actually and voluntarily reside or carry on business.
- Section 135 provides for an injunction and, at the plaintiff's option, either damages or an account of profits, together with or without an order for delivery up of the infringing labels and marks.
- Section 124 is the defendant's lever: a plea that your registration is invalid can get the suit stayed while the rectification is decided.
Criminal, under sections 103, 104 and 115
- Applying a false trade mark to goods or services is an offence under section 103, punishable with imprisonment of not less than six months extending to three years, and a fine of not less than ₹50,000 extending to ₹2,00,000. The court may impose a lesser sentence for adequate and special reasons.
- Selling goods or services to which a false trade mark has been applied is an offence under section 104, carrying the same punishment.
- Under section 115(4) a police officer not below the rank of Deputy Superintendent of Police, or equivalent, may search and seize without a warrant. Before doing so the officer shall obtain the opinion of the Registrar on the facts involved in the offence relating to the trade mark, and shall abide by that opinion.
That last requirement is the part most people do not know, and it changes how a counterfeiting complaint is prepared. The Registrar's opinion is a step to plan for, not a formality to discover after the complaint is lodged.
Where the other side has a pending application, the notice is paired with an opposition. Where they already hold a registration, it is paired with a rectification. A letter alone does not stop the Registry.
Mistakes we see in enforcement
The expensive mistakes all happen before the letter goes out.
- Sending a notice on a lapsed registration. Check the renewal position first.
- Claiming rights beyond the classes registered. Overstating the registration is the fastest way to a reply that dismantles the notice.
- Writing to somebody with an earlier right. Section 34 protects a prior user. A copycat may not be one.
- No dated evidence. Undated screenshots prove nothing. Capture URLs and dates, and keep purchase records.
- A notice and nothing else. Where there is a pending application or a registration on the other side, the Registry proceeding is the part that binds.
- Ignoring your own non-use. Five years or more of non-use is a section 47 exposure and a section 124 delay.
- Treating a platform takedown as a win. The listing returns under a new seller name unless the underlying rights question is dealt with.
Not sure whether you have infringement, passing off, or neither? Send us the registration number and what the other side is doing.