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Trademark

Someone copied your brand? What the law allows

Finding your name or logo on someone else's product is alarming, but rushing can weaken your position. This guide explains what to check first, the difference between infringement and passing off, and the options Indian trademark law gives you.

Open guide with a compliance checklist
Short answer

The short answer

Do not start with an angry phone call or a public post. First save the evidence, then work out what rights you hold and who used the mark first. If your trademark is registered, the usual claim is infringement. If it is not registered, you may still have a claim for passing off, but you have more to prove.

Most disputes then move through a marketplace complaint or a legal notice, and only some go to court.

Your claim

Infringement or passing off?

InfringementPassing off
When it appliesYour trademark is registeredRegistered or not, based on your reputation
Source of the rightTrade Marks Act, 1999 (Section 29)Common law, preserved by Section 27(2)
What you mainly showThe other mark is identical or deceptively similar, for covered goods or servicesYour goodwill, their misrepresentation, and the damage caused
DifficultyGenerally simpler, as registration is your starting pointGenerally harder, as you must prove reputation with evidence

This is why registering early helps: it changes what you must prove later. See trademark registration.

First steps

What to do first

Do these before you contact the other side, because evidence can disappear once they know you have noticed:

  • Save the evidence: dated screenshots, website and marketplace links, photos of the product and packaging, invoices from a test purchase, and any messages from confused customers.
  • Check your own rights: whether your mark is registered or applied for, in which class, and whether the classes cover what they are selling.
  • Establish who was first: collect your oldest invoices, adverts and website records. Earlier use can matter even against a registered mark.
  • Search the trademark register: see whether the other party has applied for or registered the mark. If it is advertised in the Trade Marks Journal, you can oppose it within four months.
  • Keep a note of when you found out: long delay after you learn of the copying can weaken a request for urgent relief.
Your options

The options available

  • Marketplace or platform complaint: Amazon, Flipkart, Meta and domain registrars have their own intellectual property complaint processes. These can be quicker than a legal route for online listings.
  • Legal notice: a letter setting out your rights and asking them to stop. It is common but generally not compulsory before a suit. Take advice before sending one, because groundless threats of infringement can themselves be challenged under Section 142.
  • Opposition or rectification at the Trademark Registry: to stop their application, or to have a wrongly registered mark removed.
  • Civil suit: a court can order an injunction to stop the use, and damages or an account of profits, along with delivery up of the infringing goods.
  • Criminal complaint: the Act also makes falsifying a trademark and selling such goods an offence. It is generally used in clear cases of counterfeiting.
The other side

If you received a trademark notice

  • Do not ignore it, and do not admit anything or reply in a hurry.
  • Check their claim: is their mark really registered, in a class that covers your business, and who used it first?
  • Collect your own records of first use, then take advice from an advocate before you respond.
FAQs

Brand copying — common questions

Can I take action if my trademark is not registered?

You generally cannot sue for infringement, but you may be able to bring a passing-off claim if you can prove your reputation, their misrepresentation and the damage caused.

What if my application is still pending?

A pending application gives you a filing date and shows your claim, but an infringement suit needs a registered mark. Until registration, passing off is usually the available route in court.

Someone registered my brand name before me. What now?

If you used it first, you may be able to oppose the application during the four-month period, or seek rectification of the register later. Your records of earlier use are key.

Does a company name registered with the MCA stop others using it?

Not as a trademark. A company name does not by itself give you trademark rights, which is why many businesses file a trademark as well.

Where can a case be filed?

The Act lets a registered owner file an infringement suit where the owner resides or carries on business, as well as where the cause of action arose, subject to the conditions the courts have laid down. An advocate can advise on the right court.

Written by the Probay Editorial Team

This guide is general information about Indian trademark law. It is not legal advice for your situation and not an offer of legal representation. Probay is not a law firm. For an actual dispute, please speak to an advocate of your choice.

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