Trademark is a mark that is capable of being represented graphically and is capable of distinguishing the goods or services of one person from those of others, and may include the shape of goods, their packaging, and combinations of colours. Under Indian law, trademarks are governed by the Trade Marks Act, 1999, with the term defined in Section 2(zb) and the registration regime established under Chapter III.
Legal definition
The Trade Marks Act, 1999 provides a comprehensive statutory definition:
Section 2(zb): "Trade mark" means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.
Section 2(m): "Mark" includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.
Registration of a trademark under the Act confers the exclusive right to use the mark in relation to the goods or services for which it is registered (Section 28). A registered trademark is initially valid for 10 years from the date of application and is renewable for successive periods of 10 years upon payment of renewal fees (Section 25).
Section 9 lists absolute grounds for refusal of registration, including marks that are devoid of distinctive character, marks that are descriptive, and marks that are customary in current trade parlance. Section 11 lists relative grounds for refusal, including marks that are identical or deceptively similar to earlier marks.
Even without registration, a trademark owner can bring an action for passing off — a common law remedy available under Section 27(2) — where another person uses a mark that is deceptively similar to the plaintiff's unregistered mark, causing confusion among consumers.
How courts have interpreted this term
Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd. [(2001) 5 SCC 73]
The Supreme Court established the standard for assessing deceptive similarity in pharmaceutical trademarks. The Court held that a stricter standard must apply to medicines because confusion between drug names can endanger human life. The Court laid down the factors to be considered: the nature of the marks (word, device, or composite), the degree of resemblance, the nature of the goods, the class of purchasers, and the mode of purchasing. For pharmaceutical products, even phonetic similarity may constitute infringement.
Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd. [(2004) 6 SCC 145]
The Supreme Court extended the common law action of passing off to domain names, holding that a domain name serves the same function as a trademark in the online environment — it identifies and distinguishes the source of goods or services. The Court held that the principles governing passing off are fully applicable to disputes involving domain names that are identical or deceptively similar to registered trademarks.
Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd. [(2018) 2 SCC 1]
The Supreme Court recognised the protection of "well-known trademarks" and the concept of trans-border reputation. The Court held that even if a product is not sold in India, the trademark associated with it can enjoy protection if it has acquired reputation and goodwill among Indian consumers through advertising, media exposure, or international commerce. This ruling affirmed the principle that reputation precedes physical market entry.
Types of trademarks
Indian law recognises several categories of marks:
- Word marks: Brand names consisting of words, letters, or numerals (e.g., TATA, INFOSYS)
- Device marks: Logos, symbols, or graphical representations (e.g., the Apple logo)
- Composite marks: Combinations of words and devices
- Shape marks: The distinctive shape of goods or their packaging (Section 2(zb))
- Colour combinations: Specific combinations of colours that are distinctive
- Sound marks: Distinctive sounds associated with goods or services (recognised by the Trade Marks Registry since 2017)
- Certification marks (Section 69): Marks certifying the origin, material, or quality of goods
- Collective marks (Section 61): Marks used by members of an association to distinguish their goods
Why this matters
Trademarks are the most commercially significant form of intellectual property for businesses operating in India. A registered trademark provides the owner with an exclusive, enforceable right to use the mark, the ability to license it for royalties, and a strong legal basis for preventing counterfeiting, passing off, and brand dilution.
For businesses, trademark registration is a strategic priority from the earliest stages of brand development. The registration process involves filing an application at the Trade Marks Registry (offices in Mumbai, Delhi, Kolkata, Chennai, and Ahmedabad), examination by the Registrar, publication in the Trade Marks Journal for opposition, and registration upon satisfactory completion. India follows the "first to file" system for registration, but common law rights through prior use are also recognised under Section 34.
For practitioners, trademark disputes are among the most common IP matters before Indian courts. The remedies available include injunctions (both interim and permanent), damages or an account of profits, and delivery up or destruction of infringing goods. Criminal remedies are also available: Section 103 prescribes imprisonment of six months to three years and a fine of Rs 50,000 to Rs 2 lakh for using a false trademark.
A critical practical issue is the distinction between trademark infringement (Section 29, which protects registered marks) and passing off (Section 27(2), which protects unregistered marks based on goodwill and reputation). Infringement is a statutory right requiring only proof of a registered mark and deceptive similarity; passing off requires proof of goodwill, misrepresentation, and damage — a heavier evidentiary burden.
Related terms
Broader concepts:
Related IP rights:
Related concepts:
Frequently asked questions
How long does trademark registration last in India?
A registered trademark is valid for 10 years from the date of filing the application under Section 25 of the Trade Marks Act, 1999. It can be renewed indefinitely for successive periods of 10 years upon payment of the prescribed renewal fee. Unlike patents (which expire after 20 years), a trademark can potentially last forever as long as it is renewed and continues to be used in commerce.
What is the difference between trademark infringement and passing off?
Trademark infringement under Section 29 protects registered marks and requires proof that the defendant used an identical or deceptively similar mark in relation to similar goods or services. Passing off under Section 27(2) protects unregistered marks and requires the plaintiff to prove three elements: goodwill in the mark, misrepresentation by the defendant, and actual or likely damage. Registration simplifies enforcement because the certificate of registration is prima facie evidence of validity.
Can a person use the TM symbol without registration?
Yes. The TM symbol (or SM for service marks) can be used by anyone to indicate that they claim rights in a mark, regardless of whether it is registered. The registered trademark symbol (R in a circle) can only be used for marks that are actually registered under the Trade Marks Act. Using the registered symbol for an unregistered mark is a criminal offence under Section 107.
How much does trademark registration cost in India?
The official government fee for filing a trademark application is Rs 4,500 per class per mark for e-filing (Rs 5,000 for physical filing). For startups and small enterprises, the fee is reduced to Rs 4,500 per class. Additional fees apply for opposition proceedings, renewal (Rs 9,000 per class), and miscellaneous requests. Professional attorney fees for a straightforward application typically range from Rs 5,000 to Rs 15,000.
This entry is part of the Veritect Indian Legal Glossary, a comprehensive reference of Indian legal terminology grounded in statutory text and judicial interpretation.
Last updated: 2026-03-27. Veritect provides this content for informational purposes and does not constitute legal advice.