Someone Is Using Your Brand: What Infringement Actually Means, and What to Send

Quick answer

The Act prescribes no cease and desist notice. Section 134(1) imposes only a forum requirement, and Section 135(2) expressly contemplates an ex parte injunction. What makes a notice worth sending is Section 135(3): an innocent defendant escapes damages and an account of profits only until he "became aware" and then "forthwith ceased" — a dated notice ends that. What makes a bad notice dangerous is Section 142: an unjustified threat is independently actionable by the person threatened.

Who this is for

A founder who has just found a near-identical brand on a marketplace listing. A company whose name has turned up as someone else's trade name. Anyone who has been sent a cease and desist and wants to know whether it has to be obeyed. And anyone who has been told that "sending a legal notice is the first step" and would like to know whether that is actually true.

It is not legal advice on your facts. It is the statutory map, read from the Act, so that the advice you do take is easier to evaluate.

Start here: which cause of action do you even have?

Before anything else, one fork in the road.

If your mark is registered, you can sue for infringement under Section 29, and you carry two structural advantages. Section 31(1) makes the original registration and all subsequent assignments and transmissions "prima facie evidence of the validity thereof" in all legal proceedings. And in a double-identity case, Section 29(3) requires the court to presume likelihood of confusion.

If it is not registered, Section 27(1) is blunt: "No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark." But Section 27(2) immediately saves the alternative: "Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods of another person or as services provided by another person, or the remedies in respect thereof."

That is a saving, not a grant — passing off survives as a common-law action which the Act simply does not touch. You keep a remedy. You lose the presumption, you lose prima facie validity, and you have to prove your reputation from scratch.

There is a third possibility people forget. Section 28(1) gives the exclusive right "Subject to the other provisions of this Act" and "if valid". A registration that has lapsed, or that is exposed to removal for non-use under Section 47(1)(b), is a weaker foundation than its certificate suggests. Check your own house first — the e-Register will tell you the current status and renewal position.

What Section 29 actually catches

Most content quotes one sentence of Section 29. There are nine sub-sections and they do quite different work.

29(1) — the base case

Use in the course of trade of a mark identical with, or deceptively similar to, the registered mark, in relation to the registered goods or services, "in such manner as to render the use of the mark likely to be taken as being used as a trade mark."

That last clause matters: the use has to read as trade mark use, not as an incidental mention.

29(2) — the three limbs, and the requirement that governs all of them

Infringement where the mark used, because of:

• (a) its identity with the registered mark and the similarity of the goods or services; or
• (b) its similarity to the registered mark and the identity or similarity of the goods or services; or
• (c) its identity with the registered mark and the identity of the goods or services,

"is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark."

That closing clause governs all three limbs, not just (c). It is a flush clause at the end of the sub-section. A great deal of published summarising attaches it to (c) alone and thereby drops the confusion requirement from (a) and (b) — which is the difference between a claim and an assertion.

Note also the disjunctive: confusion or likelihood of association.

29(3) — the presumption, and its narrow scope

"In any case falling under clause (c) of sub-section (2), the court shall presume that it is likely to cause confusion on the part of the public."

Shall presume — mandatory. And it attaches only to double identity: identical mark, identical goods. Not to 29(2)(a), not to 29(2)(b). If your case is identical mark on identical goods, say so expressly, because you are relying on a presumption the court has no discretion about.

29(4) — dissimilar goods, and the three conjunctive conditions

This is the sub-section for "they are using my name on something totally different". All three limbs are joined by and:

• (a) the mark is identical with or similar to the registered mark; and
• (b) it is used on goods or services not similar to those registered; and
• (c) the registered mark has a reputation in India and the use without due cause takes unfair advantage of, or is detrimental to, its distinctive character or repute.

Two features distinguish it from 29(2). There is no confusion requirement. And the reputation must be in India — not globally, not on the internet generally. IP India also publishes a list of well-known trade marks, which is directly relevant evidence where your mark is on it.

29(5) — trade names and business names

Infringement where a person "uses such registered trade mark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trade mark is registered."

Read the wording carefully. It says "such registered trade mark" — not "identical or similar" — and it requires the concern to be dealing in the registered goods or services. There is no confusion limb and no defence built into the sub-section itself.

29(6) — what "use" means

"For the purposes of this section, a person uses a registered mark, if, in particular, he—"

• (a) affixes it to goods or their packaging;
• (b) offers or exposes goods for sale, puts them on the market, or stocks them for those purposes under the mark, or offers or supplies services under it;
• (c) imports or exports goods under the mark;
• (d) uses it on business papers or in advertising.

"if, in particular" makes that list illustrative, not exhaustive — and it applies to the whole of Section 29. Importing and exporting are expressly in it, which surprises people.

29(7) — labels and packaging, with a knowledge element

Applying the registered mark to material intended for labelling or packaging goods, as a business paper, or for advertising, "provided such person, when he applied the mark, knew or had reason to believe that the application of the mark was not duly authorised by the proprietor or a licensee."

This is the only sub-section with a knowledge requirement. It is the one that reaches printers and packaging suppliers, and it protects the genuinely innocent one.

29(8) — advertising

Advertising of the mark that (a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or (b) is detrimental to its distinctive character; or (c) is against the reputation of the mark. Note that (a) is internally conjunctive while (a), (b) and (c) are alternatives.

29(9) — spoken use

"Where the distinctive elements of a registered trade mark consist of or include words, the trade mark may be infringed by the spoken use of those words as well as by their visual representation."

Relevant to radio, to voice assistants, and to anyone who assumed enforcement stops at what can be photographed.

The defences, which decide whether the notice is worth sending

A notice that ignores these is a notice that invites the reply that ends it.

Section 30 — limits on the effect of a registered trade mark

30(1) — use to identify goods or services as those of the proprietor is not caught by Section 29 provided the use (a) is in accordance with honest practices in industrial or commercial matters, and (b) does not take unfair advantage of, or be detrimental to, the distinctive character or repute of the mark. Both conditions, cumulatively.

30(2) — "A registered trade mark is not infringed where—"

• (a) the use indicates kind, quality, quantity, intended purpose, value, geographical origin, time of production or other characteristics;
• (b) the registration is subject to conditions or limitations to which the use does not extend;
• (c) the goods or services were put out by, or with the consent of, the proprietor or a registered user, and the mark was not subsequently removed or obliterated;
• (d) use on goods adapted to form part of, or be accessory to, other goods, where reasonably necessary to indicate that adaptation;
• (e) use of one of two or more registered identical or nearly resembling marks, in exercise of the right given by its own registration.

30(3) and 30(4) — exhaustion. Where goods bearing the mark are "lawfully acquired", their sale or further dealing is not infringement "by reason only of" a post-acquisition assignment, or of the goods having been put on the market under the mark by the proprietor or with consent. 30(4): that does not apply "where there exists legitimate reasons for the proprietor to oppose further dealings in the goods in particular, where the condition of the goods, has been changed or impaired after they have been put on the market."

Two limiters people skip: "lawfully acquired" and "by reason only of". And one honest gap: the statute does not say "in India" or "anywhere in the world", so the national-versus-international exhaustion question is not resolved on the face of the text. We do not assert either position.

Section 34 — prior continuous use

Nothing in the Act entitles a registered proprietor or registered user to interfere with use by a person who "has continuously used that trade mark from a date prior" to the earlier of the proprietor's first use or the date of registration — "whichever is the earlier, and the Registrar shall not refuse (on such use being proved) to register the second mentioned trade mark by reason only of the registration of the first-mentioned trade mark."

Two things follow. Being first to the register is not the same as being first. And the prior use must be continuous, not merely earlier.

Section 35 — own name and honest description

Nothing in the Act entitles a proprietor to interfere with "any bona fide use by a person of his own name or that of his place of business", or of a predecessor's, or with "the use by any person of any bona fide description of the character or quality of his goods or services."

"Bona fide" governs both branches. This is why common surnames are contested territory, and why a descriptive mark is a harder mark to enforce than a coined one.

Section 28(3) — the two-registrations answer

Where two or more persons are registered proprietors of identical or nearly resembling marks, the exclusive right "shall not … be deemed to have been acquired by any one of those persons as against any other of those persons merely by registration". Each keeps full rights against third parties, and none against the other. Section 30(2)(e) says the same thing from the defence side.

If the person you are about to write to is themselves a registered proprietor, an infringement notice is the wrong instrument. Rectification under Section 57 — available to "any person aggrieved", before either the Registrar or the High Court — is the right one.

Section 33 — acquiescence

Five years' continuous acquiescence in the use of a registered later mark, "being aware of that use", bars the earlier proprietor from seeking invalidation or opposing that use — "unless the registration of the later trade mark was not applied in good faith." Section 33(2) makes the bar reciprocal.

Four cumulative requirements on that text: continuous five years, acquiescence in the use of a registered mark, actual awareness, and the good-faith carve-out. Knowing about a copycat and doing nothing has a statutory price.

The cease and desist question, answered from the statute

The Act nowhere requires one. There is no mention of "cease and desist", no "legal notice", no "prior notice", no condition precedent to suit anywhere in it. Every one of the Act's references to a notice is Registry or administrative procedure — notice of opposition, notices to registered users, rectification notice, the Registrar's default notices, address for service, the customs notice.

The only precondition to a suit is Section 134(1), and it is purely about forum: no suit for infringement of a registered mark, for any right in a registered mark, or for passing off arising out of the defendant's use of an identical or deceptively similar mark "whether registered or unregistered", "shall be instituted in any court inferior to a District Court having jurisdiction to try the suit."

And Section 135(2) points the other way entirely: the injunction "may include an ex parte injunction" — which presupposes the defendant need not have been heard, let alone warned.

So why does a notice have real work to do? Section 135(3)

Section 135(1) sets out the relief a court may grant: an injunction, subject to such terms as the court thinks fit, and at the option of the plaintiff, either damages or an account of profits — alternatives, not both — together with or without delivery-up of infringing labels and marks for destruction or erasure.

Section 135(3) then removes part of that, mandatorily:

Notwithstanding anything contained in sub-section (1), the court shall not grant relief by way of damages (other than nominal damages) or on account of profits in any case— (a) where … the infringement complained of is in relation to a certification trade mark or collective mark; or (b) where in a suit for infringement the defendant satisfies the court — (i) that at the time he commenced to use the trade mark complained of, he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was on the register …; and (ii) that when he became aware of the existence and nature of the plaintiff's right, he forthwith ceased to use the trade mark …; or (c) where in a suit for passing off, the equivalent two-limb test measured against the mark being in use.

Four things to take from that.

1. The bar covers damages and account of profits only. Injunction and delivery-up survive it entirely, and nominal damages remain available.
2. Both limbs of (b) or (c) are required, and the burden is on the defendant.
3. The shield runs only until the defendant "became aware". A clear, dated, evidenced notice is the cheapest possible way of establishing that date.
4. "Forthwith ceased" is the standard for the second limb — so a defendant who receives a notice and keeps trading has lost the shield prospectively whatever else happens.

That is the honest case for sending a notice, and it is a much better case than "it is the first step".

And why a bad notice is dangerous: Section 142

Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding for infringement of a trade mark … a person aggrieved may … bring a suit … and may obtain a declaration to the effect that the threats are unjustifiable, and an injunction against the continuance of the threats and may recover such damages (if any) as he has sustained, unless the first-mentioned person satisfies the court that the trade mark is registered and that the acts … constitute … an infringement.

• 142(2) — the section does not apply where the proprietor "with due diligence commences and prosecutes an action against the person threatened." So a notice you never follow up is more exposed than one you do.
• 142(3) — legal practitioners and registered trade marks agents acting in a professional capacity are protected.
• 142(4) — a Section 142 suit is itself not to be instituted below a District Court.

Put 135(3) and 142 side by side and the drafting rule writes itself: send a notice you can justify, on a limb of Section 29 that actually fits, after checking Sections 30, 34 and 35 — or do not send one.

Where you can sue, and the trap in Section 134(2)

Section 134(2) is the well-known convenience: a District Court having jurisdiction "shall … include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit … actually and voluntarily resides or carries on business or personally works for gain." The Explanation extends "person" to the registered proprietor and the registered user.

Three precision points that get blurred:

1. It applies to clauses (a) and (b) of Section 134(1) only. Section 134(1)(c) — passing off — is not covered. A pure passing-off suit falls back on the ordinary Code of Civil Procedure fora.
2. It says "include". It adds a forum; it does not displace the CPC ones.
3. The trigger is the plaintiff's residence, business or work for gain, assessed at the time of institution.

So the unregistered brand owner loses twice over: no infringement action under Section 27(1), and no home-forum convenience under Section 134(2). That is two more reasons why registering the mark usually precedes enforcing it.

The criminal side, and what Jan Vishwas actually did

These are real offences, and they are not a rhetorical add-on to a civil notice.

The minima are mandatory ("shall not be less than"), the maxima discretionary ("may extend to"), and imprisonment and fine are cumulative. Each carries a proviso letting the court go below the minimum only "for adequate and special reasons to be mentioned in the judgment." Section 103 puts the burden on the accused — "unless he proves that he acted, without intent to defraud". Section 104 provides defences: reasonable precautions plus no reason to suspect; giving all information as to the source on demand; or "that otherwise he had acted innocently." Section 110 subjects these provisions to the rights created or recognised by the Act.

And the Jan Vishwas point, because it is asserted constantly and checked rarely. The Jan Vishwas (Amendment of Provisions) Act, 2023 took effect on 1 August 2024 and, in this Act, did exactly this:

Sections 103, 104 and 105 carry no amendment marker and were left entirely intact. "Jan Vishwas decriminalised trade mark offences" is true of Sections 106 to 109 and false of the counterfeiting offences.

What a grounded notice contains

Not a template — the drafting is fact-specific and this is the checklist behind it.

1. Your right, precisely. Registration number, class, the goods or services as registered, current status and renewal position. If the mark is unregistered, say so and put the case on passing off under Section 27(2).
2. The limb. Which of 29(1), 29(2)(a)/(b)/(c), 29(4), 29(5) or passing off the case actually rests on — and, if 29(2)(c), that Section 29(3) requires the court to presume confusion.
3. The use, dated and evidenced. Screenshots, listings, packaging, invoices, with dates. Section 29(6) tells you what counts as use.
4. Why the obvious defences do not apply. Section 30, Section 34 prior use, Section 35 own name — addressed, not ignored.
5. What you want and by when. Cessation, and any undertaking. Keep the demand proportionate to the right you actually hold; Section 142 is what makes over-demanding expensive.
6. The Section 135(3) point, made expressly. Once the notice is received, the recipient is on notice for the purposes of that sub-section. Saying so is fair, accurate and does the notice's real work.

Common mistakes

• Treating the notice as a legal requirement. It is not; Section 134 imposes only a forum rule.
• Claiming across goods the registration does not cover, without putting the case on Section 29(4) reputation or on passing off.
• Ignoring Section 28(3) where the other side is also registered — that is a rectification case, not an infringement case.
• Overlooking Section 30(2)(a) where the "use" is genuinely descriptive of kind, quality or purpose.
• Writing to a prior user protected by Section 34, or to someone trading bona fide under their own name under Section 35.
• Overstating criminal exposure. Sections 103 to 105 have their own ingredients and their own defences.
• Asserting Jan Vishwas decriminalised counterfeiting. It did not touch Sections 103 to 105.
• Enforcing on a mark you are not using. Section 47(1)(b) allows removal where there has been no bona fide use for a continuous period of five years or longer, running from actual entry in the register and measured to three months before the removal application — an invitation you extend by writing.
• Waiting five years. Section 33(1) closes the door on a knowing, continuous acquiescence.
• Sending and then doing nothing. Section 142(2) protects the proprietor who commences and prosecutes with due diligence — and by implication leaves the one who does not more exposed.

What to do next

1. Check your own registration on the e-Register — live, renewed, covering the goods complained of.
2. Date and preserve the evidence of the other side's use.
3. Identify the limb, and check Sections 30, 34 and 35 against it honestly.
4. Decide the instrument: an infringement notice, an opposition if the mark is advertised and inside the four-month window under Section 21(1), or rectification under Section 57 if it is already registered.
5. Then draft — with Section 135(3) in mind for what the notice achieves, and Section 142 in mind for what it must not overreach.

If you would like the assessment done before anything is sent, that is where our infringement notice service starts — and occasionally it ends there, because the honest answer was that a notice was the wrong move.

Sources and currency

Applies to: India. Trade Marks Act, 1999 (Act 47 of 1999) as consolidated on 1 June 2026, listing four amending Acts — 40 of 2010, 7 of 2017, 33 of 2021 and the Jan Vishwas (Amendment of Provisions) Act, 2023. Read on 20 August 2026.

Every section, sub-section, period and penalty amount here was read from the bare Act on India Code. No case law is cited, because none was captured from a primary source — so nothing here states how courts have construed any provision, how long a suit takes, or what one recovers. Those are questions for counsel on your facts. This article is not legal advice and does not create a lawyer-client relationship.

• Trade Marks Act, 1999 (Act 47 of 1999), consolidated as on 1 June 2026 — Sections 27, 28, 29, 30, 31, 33, 34, 35, 47, 57, 103, 104, 105, 110, 112A, 112B, 134, 135 and 142
• Trade Marks Rules, 2017 as gazetted — G.S.R. 199(E), 6 March 2017, and the First Schedule of fees
• First Schedule to the Trade Marks Rules 2017 — forms and official fees as displayed by IP India
• Trade mark e-Register — the legal status of a registered mark (IP India)
• Application and registration status (IP India e-status)
• List of well-known trade marks (IP India)