What Is an Ex Parte Injunction in Trademark Cases?

What an ex parte injunction trademark order is, in plain words

An injunction is an order to do or not do something. In a trademark suit, the plaintiff asks for a permanent injunction at the end of the case and a temporary injunction in the meantime under Order 39 Rules 1 and 2 of the Code of Civil Procedure 1908. Normally the court hears both sides before granting a temporary injunction. Order 39 Rule 3 creates an exception: where the object of the injunction would be defeated by the delay, the court may grant it without notice to the defendant, recording its reasons.

That is what lawyers mean by an ex parte injunction trademark order. It is almost always an ad interim injunction, meaning it lasts until the next date, when the defendant has been served and can be heard. On that date the court decides whether to continue it until the suit is decided, modify it, or vacate it.

The Delhi High Court grants these orders more often than most courts in India, mainly because its Intellectual Property Division hears a very large number of trademark suits and has well-settled practices for counterfeit cases. A typical order restrains the defendant from manufacturing, selling, advertising or offering goods under the infringing mark, and in counterfeit cases appoints local commissioners to visit specified premises the same week.

For the plaintiff this is the most valuable stage of the whole suit. Many trademark suits end in settlement within months of an ex parte order because the defendant cannot trade under the mark and the seized stock is held under the court's control.

When does the court grant an ex parte injunction?

The plaintiff must first meet the usual three tests for any temporary injunction: a prima facie case, a balance of convenience in its favour, and irreparable injury if the order is refused. On top of that, for an order without notice, the court must be satisfied that the delay involved in giving notice would defeat the purpose. In Morgan Stanley Mutual Fund v. Kartick Das (1994) the Supreme Court listed the factors: whether irreparable harm would follow, whether the plaintiff came promptly, whether the plaintiff had acquiesced, and whether it disclosed everything material.

The strongest candidates for an ex parte injunction in trademark cases are counterfeits: goods using an identical mark and packaging, passed off as the plaintiff's own. Identical marks on identical goods, dishonest adoption shown by copying of trade dress, and an established brand with clear evidence of sales and registration also weigh heavily. In Midas Hygiene Industries v. Sudhir Bhatia (2004) the Supreme Court said that in infringement cases an injunction should normally follow where the adoption is dishonest.

Courts are more cautious where the marks are only similar, where the defendant has been trading openly for years, or where the plaintiff knew of the defendant long ago and did nothing. Delay does not always defeat a final injunction, but it is hard to argue that a matter is so urgent that the defendant cannot be heard first when you yourself waited a year.

The court also considers the effect on the defendant. An order that would shut down a long-running business on one side's version alone is less likely than one that stops sale of obvious counterfeits pending a short hearing.

The law behind ex parte orders and raids

Ad interim injunction: what 'till the next date' really means

An ad interim injunction is a holding order. The court has heard only the plaintiff, finds a strong case and urgency, and freezes the position until it can hear the defendant. The order sheet usually says 'till the next date of hearing', with a date a few weeks away. On that date it is commonly extended if the defendant has not yet appeared or replied.

Rule 3A of Order 39 asks the court to try to dispose of the injunction application within 30 days of an ex parte order, and to record reasons if it cannot. In practice in busy IP rosters, the ad interim order is often extended several times while pleadings are completed. That is why defendants who believe the order is wrong should move promptly under Rule 4 rather than wait. Our guide on how interim orders work and how long they last explains this in general terms.

An ad interim injunction binds from the moment the defendant knows of it, not only from formal service. Selling infringing goods after the commissioner's visit, or moving stock released on superdari, is a breach. Under Rule 2A the court can attach the defaulter's property and order civil detention, and the Delhi High Court has imposed heavy costs for breaches in counterfeit cases.

For the plaintiff, the obligations under the proviso to Rule 3 are strict. Copies must be delivered immediately and an affidavit of compliance filed. A plaintiff that fails to do this hands the defendant a ground to seek vacation of the order.

Local commissioner raids: how they actually work

A local commissioner raid is the step that makes ex parte relief bite. Along with the injunction, the court appoints one or more advocates as local commissioners to visit the defendant's shop, factory or godown, usually named in the plaint after the plaintiff's investigation. The commissioner goes with the plaintiff's representative, and the order directs the SHO of the local police station to provide assistance if needed.

At the premises, the commissioner serves the order and the suit papers, searches for goods bearing the infringing mark, prepares an inventory, takes photographs and video, and seizes the goods. Often the seized goods are not carried away but sealed and handed back to the defendant on superdari, with an undertaking not to sell or move them. The commissioner may also take copies of account books or invoices that show the scale of sales.

The commissioner then files a report in court, which becomes important evidence. The plaintiff pays the commissioner's fee as fixed by the court and the travel expenses. Commissions are kept confidential until executed: the order is often passed in court with directions that it not be uploaded until the commission is carried out, so that the defendant has no warning.

Where the infringers cannot be named in advance, as with street sellers or temporary stalls, the Delhi High Court has for many years passed orders against unnamed defendants, often called John Doe or Ashok Kumar orders. The first such order in India is generally traced to the Delhi High Court's decision in Taj Television v. Rajan Mandal (2003). These orders allow commissioners to act against any seller found with infringing goods in specified markets.

Step by step: seeking an ex parte injunction in Delhi High Court

1. Investigate quietly

   Hire an investigator or send your own staff to make test purchases from the defendant, with invoices, photographs and, where lawful, video. Identify the shop, godown and factory addresses. Do not send a notice.

2. Assemble your title and reputation evidence

   Gather registration certificates and legal proceedings certificates, evidence of first use and continuous use, sales figures certified by a chartered accountant, advertisements and examples of your genuine product beside the counterfeit.

3. Draft the plaint and application

   The plaint for infringement and passing off is filed with an application under Order 39 Rules 1 and 2, an application for appointment of local commissioners, an application seeking exemption from Section 12A mediation, and a statement of truth as required for commercial suits.

4. Value the suit and file

   Value the suit in good faith; in Delhi, suits above Rs 2 crore go to the High Court's Commercial Division, and smaller ones to district commercial courts. File through e-filing and mention it for urgent listing if needed.

5. Argue at the first hearing

   Counsel presents the case to the IP Division judge, shows the side-by-side comparison and the investigator's evidence, and answers questions about delay and the defendant's own registrations. The court decides whether to grant the order and appoint commissioners.

6. Comply with the proviso

   Immediately after the order, deliver copies to the defendant (after the commission is executed, where the court permits) and file the affidavit of compliance.

7. Execute the commission

   Coordinate with the commissioner and the local police, pay the fee, and attend the visit. The commissioner files a report with the inventory.

8. Prepare for the inter partes hearing

   When the defendant appears and replies, file a rejoinder and argue for the injunction to be confirmed until the suit is decided.

Urgent matters are listed through the court's mentioning procedure; our guide on urgent mentioning in the Delhi High Court explains how that works.

Typical timeline after filing

Evidence the court expects to see

Full and frank disclosure: the duty that sinks careless plaintiffs

Because the court hears only one side, the plaintiff must disclose every fact that would matter to the judge, including facts that hurt its case. That means the defendant's own trademark registrations or applications, any opposition or rectification proceedings, earlier notices and replies, earlier suits or settlements between the parties, and the date the plaintiff first learned of the defendant. Suppression is one of the most common reasons ex parte injunctions are vacated, often with costs.

The defendant's registration matters especially. Under Section 28(3) of the Trade Marks Act, where two parties are registered proprietors of identical or similar marks, neither can sue the other for infringement, though a passing off action survives, as the Supreme Court confirmed in S. Syed Mohideen v. P. Sulochana Bai (2016). A plaintiff that sues a registered defendant for infringement without mentioning the defendant's registration is inviting trouble.

When Advocate B.K. Singh prepares an ex parte application, he runs a search on the defendant's name and marks before drafting, and puts any adverse fact in the plaint himself, with the explanation. A judge who reads about a defendant's pending application in the plaintiff's own papers is far more likely to grant relief than one who hears about it for the first time from the defendant's counsel two weeks later.

A wrongly obtained injunction has consequences. Section 95 of the CPC allows the court to award compensation to a defendant against whom an injunction was obtained on insufficient grounds, and the Commercial Courts Act gives the court wide powers on costs.

Which court and which bench hears it

Under Section 134 of the Trade Marks Act, a registered proprietor can sue in the district court within whose jurisdiction it actually and voluntarily resides or carries on business, as well as where the infringement takes place. For a Delhi-based brand, that usually means Delhi, even if the copier is in Ghaziabad, Ludhiana or Mumbai. Passing off claims follow the ordinary rules on where the cause of action arose, and online sales into Delhi are often relied on.

Trademark suits are commercial disputes under the Commercial Courts Act 2015. In Delhi, those valued above Rs 2 crore go to the Commercial Division of the Delhi High Court and are heard by judges of its Intellectual Property Division under the IPD Rules 2022; those valued lower go to the district commercial courts in the court complexes such as Saket, Tis Hazari, Patiala House and Rohini. A proposal to raise the Rs 2 crore limit is pending, so check the current limit. Our guide on the Intellectual Property Division of the Delhi High Court explains how the division works.

Appeals against an interim order of a single judge of the Commercial Division go to the Commercial Appellate Division, a Division Bench, under Section 13 of the Commercial Courts Act within 60 days; see our page on commercial appeals.

This is a private law firm's website, not the official website of the Delhi High Court. For case status, cause lists and orders, use the court's own website.

If you have been served with an ex parte injunction

Comply first. Stop selling, advertising and listing goods under the restrained mark, take down online listings, and do not touch stock that the commissioner sealed or handed back on superdari. A breach, even a small one by a shop assistant, can turn a defensible case into contempt proceedings.

Then read the papers carefully. When Advocate B.K. Singh is instructed by a defendant, the first thing he checks is what the plaintiff told the court about the defendant: whether the defendant's own registration, years of open use, or an earlier exchange of notices was disclosed. Suppression of any of these is often the strongest ground to have the order set aside. He also checks whether the plaintiff complied with the proviso to Rule 3 by sending the papers and filing the affidavit on time.

The routes are an application under Order 39 Rule 4 to vacate or modify the order, a reply to the injunction application, and, where the order is plainly wrong, an appeal to the Division Bench. Common defences are prior use (Section 34), the defendant's own registration (Section 28(3)), honest concurrent use, acquiescence, delay, and that the marks are simply not similar when seen as a whole.

If you expect to be sued, for instance after receiving a notice, you can file a caveat under Section 148A of the CPC so that you are heard before any order is passed; see our guide on filing a caveat in the Delhi High Court. A caveat is valid for 90 days and can be renewed.

Ex parte relief against online sellers and unknown defendants

Much infringement now happens online: marketplace listings, social media shops and websites using the brand name. The Delhi High Court regularly passes ex parte orders directing marketplaces to take down listings, social media platforms to remove pages, and domain registrars to suspend infringing domains, along with orders directing them to disclose the details of the sellers or registrants behind them.

Where infringing websites keep reappearing under new addresses, the court has developed dynamic injunctions that let the plaintiff extend the order to mirror sites without filing a fresh suit; our guide on dynamic injunctions against piracy websites explains how these work, mostly in copyright cases but increasingly in trademark ones.

Online orders still require evidence: dated screenshots, URLs, test purchases with delivery records and proof that the sellers are reaching customers in Delhi. Platforms are usually impleaded as defendants for the limited purpose of compliance and disclosure, not as wrongdoers.

What usually goes wrong

• Sending a notice and then asking for ex parte relief. The court will ask why notice could be given then but not now, and the defendant has had time to clear stock.
• Waiting months after the test purchase. Delay undermines the urgency that ex parte relief depends on.
• Hiding the defendant's registration or earlier dealings. Suppression is a leading reason for orders being vacated with costs.
• Weak investigation. An investigator's affidavit without invoices or photographs, or with the wrong address, wastes the commission.
• Defendants ignoring the order. Continuing to sell after service, or moving sealed stock, can lead to contempt and heavy costs.
• Treating the ex parte order as the end. Plaintiffs who do not follow up with pleadings and evidence can lose the order at the inter partes stage.

What happens after the ex parte stage

Once the defendant appears, the court hears both sides on the injunction application. If the case is strong and the defendant has no real answer, the injunction is confirmed until the suit is decided. Many defendants at this point offer an undertaking to stop using the mark, surrender stock for destruction and pay costs, and the suit is decreed on those terms. For general timelines, see our guide on how long a trademark suit takes in the Delhi High Court.

Where the defendant contests, the suit goes through the commercial court procedure: written statement within 120 days, admission and denial of documents, framing of issues, evidence by affidavit and cross-examination before a local commissioner or the Joint Registrar, and final arguments. In clear cases the plaintiff can seek summary judgment under Order XIII-A, which the Delhi High Court has used in counterfeit matters to grant decrees and damages without a full trial.

Damages, costs and destruction of seized goods are decided at the end or in the summary judgment. The trademark infringement and passing off page describes the full course of such suits.

Brand owners who want to avoid the need for emergency relief in future should register early and keep dated evidence of use; our guide on how to protect a trademark before going to court covers that groundwork.

The criminal route as an alternative

Selling goods with a falsified trademark is also an offence under Sections 103 and 104 of the Trade Marks Act. Under Section 115, a police officer not below the rank of Deputy Superintendent of Police can search and seize without a warrant, but only after obtaining the opinion of the Registrar of Trade Marks on the facts. Some brand owners use the criminal route alongside a civil suit, particularly against large counterfeiting operations.

The criminal route has drawbacks. It depends on police priorities, gives the brand owner less control over timing and evidence, and does not by itself produce an injunction or damages. For most brand owners in Delhi, the civil suit with an ex parte injunction and local commissioner remains the faster and more controllable tool.

What to do this week

If you are a brand owner, do not send a notice yet. Make test purchases with invoices and photographs, note the addresses of shops and godowns, and gather your registration certificates and one invoice for each year of use. Check whether the other side holds any registration of its own, so you can disclose it. Then move quickly: every week of delay weakens the case for an order without notice.

If you are a defendant who has been served, stop the restrained activity at once and keep sealed stock untouched. Collect your own registrations, invoices showing your earliest use and any earlier correspondence with the plaintiff, and get advice on a Rule 4 application or an appeal. If you want your papers checked on either side, or want updates on the law on interim relief in brand cases, contact Advocate B.K. Singh.