Trademark, Copyright and IP: Questions and Answers

Collect evidence before you confront anyone. Make a test purchase and keep the bill, photograph the shop and packaging, save the online listings with dates, and put together proof of your own use: first invoices, advertisements, sales figures and your registration certificate if you have one. When Advocate B.K. Singh takes up a copycat brand case, he first fixes the earliest date of the client's use, because that date often decides who wins. Then decide between a notice and an immediate suit. Our page on trademark infringement in Delhi explains the court route.

Registration is not compulsory, but it makes enforcement much easier. A registered mark gives you a statutory right to sue for infringement across India for the goods or services covered. Without it, you can still sue for passing off, but you must prove your reputation and goodwill. The TM symbol only signals a claim and gives no legal protection by itself. Using the R symbol for an unregistered mark is an offence under Section 107 of the Trade Marks Act. Our guide on protecting a trademark before going to court covers the steps.

That depends on who the copier is. For a counterfeiter with stock in a godown, a notice gives time to move the goods, change the name or hide records, so brand owners often go straight to court and ask for an ex parte injunction with a local commissioner. For an honest small trader who did not know of your brand, a firm notice often ends the matter without a suit. A notice also helps show the court that the defendant knew of your rights. Think about what evidence could disappear before you send anything.

Possibly. Section 142 of the Trade Marks Act lets a person threatened with an infringement action that is groundless sue for a declaration that the threats are unjustified, an injunction against continuing them and damages. The protection falls away if the person making the threat actually files and pursues an infringement suit with due diligence. Do not ignore the notice in the meantime. Send a reasoned reply, check whether you have prior use, and check the rival's registration status on the Trade Marks Registry's records.

It depends on the value of the suit. A trademark suit cannot be filed in a court below a District Court, and IP disputes are commercial disputes under the Commercial Courts Act. Suits valued above Rs 2 crore go to the High Court, where they are heard by the Intellectual Property Division; smaller ones go to the district commercial courts. A proposal to raise the pecuniary limit is pending, so check the current limit. Our guide on the IP Division of the Delhi High Court explains what it hears.

Not just because the website is visible in Delhi. In Banyan Tree Holding v. A. Murali Krishna Reddy (2009), a Division Bench of the Delhi High Court held that a passive website accessible everywhere is not enough. The plaintiff has to show the defendant specifically targeted customers in Delhi, for example by actually selling and delivering to Delhi buyers. A trap purchase alone may not be enough either. If you are the defendant, raise the jurisdiction objection at the first opportunity, not after filing a full defence.

The court asks three questions: is there a prima facie case, where does the balance of convenience lie, and will the plaintiff suffer harm that money cannot repair. In comparing marks, it looks at the overall impression on an average buyer with imperfect recollection, not a side-by-side check of every letter. The Supreme Court's test in Cadila Health Care v. Cadila Pharmaceuticals (2001) is applied, with stricter scrutiny for medicines. The plaintiff's own delay, dishonest adoption by the defendant and the scale of each side's business all weigh in.

Often for shoes, sometimes for a cafe. A registered mark protects the goods it covers and similar goods, and footwear is close enough to clothing that confusion is likely. For unrelated goods or services, Section 29(4) of the Trade Marks Act protects a mark that has a reputation in India, if the other use takes unfair advantage of it or harms its character or reputation. A small local brand will struggle to stretch that far. Registering in the classes you are likely to expand into is cheaper than litigating later.

There are two routes. The owner can apply to the Trade Marks Registry under the Trade Marks Rules 2017 with evidence of reputation, or a court can declare a mark well known while deciding a suit, and the Delhi High Court has done so for many brands. A well-known mark gets protection across unrelated goods and services, and the Registry must refuse later applications that copy it. The evidence needed is heavy: years of sales, advertising spend, media coverage, registrations and earlier court orders protecting the mark.

Probably not, if you can prove your earlier use. Section 34 of the Trade Marks Act protects a prior user who has continuously used the mark from a date earlier than both the registered owner's first use and the registration. Continuous use is the key, so collect invoices, tax returns, advertisements and listings year by year from 2015 onward. You can also apply to remove or rectify the later registration. Our page on trademark rectification explains that route.

Not necessarily. In Midas Hygiene Industries v. Sudhir Bhatia (2004), the Supreme Court held that where infringement is clear, delay alone is not a ground to refuse an injunction. Acquiescence is different: if you knowingly allowed the use, or encouraged it, the defendant can rely on that. A long gap also weakens any plea of urgency and makes an ex parte order unlikely. Explain the delay honestly in the plaint, for example that you only learnt of the copying when it reached online marketplaces.

The court appoints a lawyer as local commissioner to visit the defendant's premises, usually without prior notice, to make an inventory of infringing goods, seize or seal them, and take copies of account books and records. Police help is often directed. The commissioner then files a report in court, which becomes evidence of the scale of infringement. The plaintiff's representative usually goes along to identify the goods. Our guide on ex parte injunctions in trademark cases explains when the court orders this.

Cooperate, stay calm and record your objections. Check the inventory carefully, note any genuine goods wrongly included, and sign the record with your objections written on it. Ask for a copy of the commission order and the plaint. Never break the seal or move the sealed goods, because that is contempt. Then enter appearance and, if the order is unjustified, apply to set aside the ex parte injunction under Order 39 Rule 4 of the CPC. When Advocate B.K. Singh acts for a defendant after such a visit, he first compares the seized stock with the defendant's purchase bills.

Both are available. Selling goods with a falsified trademark is an offence under the Trade Marks Act, and the police can search and seize, though an officer of at least Deputy Superintendent rank must first get the Registrar's opinion. Copyright infringement is an offence under Section 63 of the Copyright Act, and the Supreme Court held in Knit Pro International v. State of NCT of Delhi (2022) that it is cognizable and non-bailable. A criminal case does not get you damages or a permanent injunction, so most brand owners combine it with a civil suit.

Yes, through customs. Under the Intellectual Property Rights (Imported Goods) Enforcement Rules 2007, a right holder can record its registered rights with customs through a notice. Customs can then suspend clearance of goods that appear to infringe, inform you, and give you a short time to join the examination and confirm whether they are fake. You may need to give a bond and indemnity. The system works only if your recordal lists clear product details and an active contact who responds quickly when customs calls.

Comparison is allowed; running down your product is not. Under Section 30(1) of the Trade Marks Act, a competitor may use your mark in honest comparative advertising. The Delhi High Court has repeatedly held that a seller may claim its product is better, even with some puffery, but cannot falsely disparage or denigrate a rival's product. Claims stated as facts, like test results, must be true. Save the advertisement with dates and platforms, and act quickly, because courts look at urgency in campaign cases.

Yes. Under Section 16 of the Companies Act 2013, the registered owner of a trademark can apply to the Central Government, through the Regional Director, within three years of the company's incorporation, for a direction to change a name that is identical or too similar to the mark. You can also sue for infringement or passing off and ask the court to restrain use of the name, and the Delhi High Court has issued such orders. If more than three years have passed, the suit is the main route.

To the High Court. After the Tribunals Reforms Act 2021, appeals under Section 91 of the Trade Marks Act against orders of the Registrar go to the High Court, and in Delhi they are heard by the IP Division. The appeal must be filed within three months from the date the order is communicated to you. Read the order closely, because a refusal on a curable point may be better handled by a fresh application. Our page on trademark and patent appeals explains the process.

Yes, in several ways. The Delhi High Court's IP Division Rules 2022 let the court consolidate cases about the same mark or patent, set up confidentiality clubs so sensitive documents are seen only by named persons, take help from scientific advisers, and hear technical witnesses together in a hot-tubbing session. Patent suits have their own rules too. The commercial timelines for written statements and documents also apply. Official case status and cause lists for IP matters are on the Delhi High Court's own website.

You own the copyright in original text and photographs from the moment they are created, without registration. Start with a notice to the copier and a complaint to the hosting platform or marketplace, since intermediaries must act on complaints under the IT Rules. If that fails, a suit for injunction and damages can be filed. Keep dated screenshots, your original image files with their metadata and proof of first publication, and get a Section 63 certificate under the Bharatiya Sakshya Adhiniyam for electronic records. Our page on copyright and piracy cases covers the court route.

Unless there is a written assignment, the freelancer probably does. Under Section 17 of the Copyright Act, the author is the first owner, and the employer owns work only when it is made by an employee in the course of employment. A freelancer working on a contract for services is not an employee. The fix is a written assignment under Section 19 that identifies the work, the rights, the territory and the duration. Do this before you register the logo as a trademark or raise investment, because buyers and investors check it.

Not for the idea alone. In R.G. Anand v. Delux Films (1978), the Supreme Court held that copyright protects the expression of an idea, not the idea itself. You must show that the film copies the substance of your script, such as its specific plot, scenes, characters and sequence, and that the makers had access to it. Proof of when and to whom you sent the script matters, so keep emails, registration of the script and records of meetings. Similar themes, a common genre or stock scenes are not enough.

Yes. Using a recorded song in a promotional video without a licence is copyright infringement, even if it is only a short clip. Fair dealing under Section 52 of the Copyright Act covers narrow purposes like criticism, review and news reporting, not business promotion. Music libraries on social platforms come with terms that often limit commercial use, so read them before relying on them. If you receive a takedown or a notice, remove the reel quickly and talk to the label, because many such claims settle with a licence fee.

No. In UTV Software v. 1337x.to (2019), the Delhi High Court allowed what it called a dynamic injunction. Once the main site is blocked, the plaintiff can apply to add mirror, redirect and alphanumeric versions of the same site, with an affidavit showing they carry the same content. The application goes before the Joint Registrar, and internet service providers are then directed to block the new addresses. Keep a monitoring log of each new domain with screenshots. Our guide on dynamic injunctions against piracy sites explains how it works.

Yes. The Delhi High Court has granted orders before major sporting events, restraining websites and unknown persons from streaming the matches without authorisation and directing internet service providers and domain registrars to block sites that are already known for piracy. Broadcasters rely on the broadcast reproduction right under Section 37 of the Copyright Act along with copyright in the content. Such orders usually allow new rogue sites to be added during the tournament. Speed is everything, so the suit is filed well before the first match.

Try the platform first; go to court if it does not act. Under the IT Rules, a platform must act within 24 hours on a complaint about content that impersonates a person, including artificially morphed images, and a February 2026 amendment added labelling of AI-generated content and shorter takedown timelines, so check the current timelines. Complain through the grievance officer and keep the complaint number. If the content stays up or keeps reappearing, the Delhi High Court can order removal across platforms. Our page on personality rights and deepfakes explains that suit.

Not without permission, if the public would link it to the celebrity. The Delhi High Court has protected not only names and photographs but also voices, mannerisms and signature phrases; in 2023 it restrained misuse of actor Anil Kapoor's catchphrase "jhakaas" along with his name and likeness. The test is whether the ad trades on the person's identity to sell a product. Genuine parody and commentary get more room. A business planning a tribute-style ad should take legal advice before it goes live.

Probably not, as the law stands in Delhi. In 2023, in a case brought by a late actor's father against a film on his life, a single judge of the Delhi High Court held that personality and privacy rights end with the person and are not inherited. The family may still have other claims, such as defamation of the living or copyright in material they own. The point is not fully settled across India, so check the current position before planning a case or a biopic.

For a .in domain, a complaint under the .IN Domain Name Dispute Resolution Policy run by NIXI is usually faster and cheaper; for .com and most other domains, the UDRP before a recognised provider works the same way. Both can transfer or cancel the domain but do not award damages. A suit in the Delhi High Court makes sense when there are many domains, a running fake website, or you also need damages and orders against the registrar. Do not pay the squatter. Our page on domain name disputes compares the routes.

Often not, and this is a common trap. Under Section 15(2) of the Copyright Act, copyright in a design that could have been registered under the Designs Act ends once the article has been made more than 50 times by an industrial process. So a manufacturer who mass-produced an unregistered design usually cannot fall back on copyright in the drawings. Passing off may still protect a distinctive shape or get-up that buyers link to you. Register new designs before launch, since registration needs the design to be new.

The case continues, but the cancellation plea becomes part of it. Under Section 22(3) of the Designs Act, every ground for cancelling a registration can be raised as a defence, and under Section 22(4), a suit in which such a defence is raised is transferred to the High Court. If you are already in the Delhi High Court, it stays there and both questions are heard together. Expect the defendant to produce earlier catalogues, websites and products to show your design was already known. Our page on patent and design cases covers both.

It makes the case longer and more technical. Under Section 104 of the Patents Act, when a defendant counterclaims for revocation, the suit and counterclaim go to the High Court and are tried together. The defendant will rely on earlier patents and publications to argue your invention was not new or obvious, and you must defend the patent's validity as well as prove infringement. The court can use confidentiality clubs and scientific advisers. Our guide on how patent suits work in the Delhi High Court explains the stages.

Yes, in suitable standard essential patent cases. The Delhi High Court has ordered pro tem deposits, an interim payment or security while the suit is pending, where the defendant had earlier taken a licence, admitted using the standard or was negotiating a licence and stopped paying. The court weighs prima facie infringement of a patent essential to a standard like 4G or 5G. These orders aim to stop a user from delaying the case while using the technology for free. They depend heavily on the facts and the past dealings between the parties.

Three months from the date of the order, to the High Court. Section 117A of the Patents Act provides the appeal, which went to the High Courts after the IPAB was abolished in 2021. Whether the Delhi High Court is the right forum depends on which patent office handled your application, so check that before filing. The appeal should address each ground in the Controller's order, such as lack of inventive step or a Section 3 exclusion. The Delhi High Court sends many such cases back for fresh decision when the order gives no proper reasons.

Yes. If the defendant does not file a written statement, the court can pass judgment under Order VIII Rule 10 of the CPC, or decide the suit summarily under Order XIII-A, and the Delhi High Court has awarded damages and costs in such cases. Damages depend on your evidence, so file what you have on the defendant's sales, your lost business, the local commissioner's report and the defendant's conduct. Costs in commercial suits generally follow the result. Collecting the money from a small trader is a separate matter, so think about execution early.

More than the name. A workable settlement records the defendant's undertaking to stop using the mark, a short phase-out period for existing stock if agreed, destruction or handover of infringing goods and packaging, transfer or cancellation of domain names and social media handles, withdrawal of any opposition or rectification filed against your mark, and costs or damages. Ask the court to pass a decree in terms of the settlement so that breach is enforceable as contempt or in execution. When Advocate B.K. Singh drafts IP settlements, he lists every marketplace listing to be taken down. You can contact us to review draft terms.