Trademark Infringement is the unauthorised use by any person, in the course of trade, of a mark that is identical with or deceptively similar to a registered trademark, in relation to goods or services for which the trademark is registered, in a manner that is likely to cause confusion or association. Under Indian law, trademark infringement is defined in Section 29 of the Trade Marks Act, 1999, and carries both civil and criminal remedies.
Legal definition
The Trade Marks Act, 1999 provides a detailed infringement framework:
Section 29(1): A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered.
Section 29 covers multiple scenarios of infringement:
- Section 29(1)-(3): Use of an identical or similar mark on identical or similar goods/services, where there is a likelihood of confusion
- Section 29(4): Use of an identical or similar mark on dissimilar goods/services, where the registered mark has a reputation in India and the use takes unfair advantage of, or is detrimental to, the distinctive character or repute of the mark (dilution)
- Section 29(5): Use of a registered mark as a trade name or part of a trade name
- Section 29(6)-(7): Use in advertising that takes unfair advantage of, or is detrimental to, the mark
- Section 29(8)-(9): Use of an identical or deceptively similar mark applied to goods or their packaging
The test for determining infringement is the likelihood of confusion on the part of the public, assessed by comparing the marks as wholes and considering the nature of the goods, the class of purchasers, and the mode of purchasing.
How courts have interpreted this term
Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd. [(2001) 5 SCC 73]
The Supreme Court held that in pharmaceutical trademark disputes, courts must apply a stricter standard of comparison because consumer confusion in medicines can have life-threatening consequences. The Court laid down factors for assessing deceptive similarity: the nature of the marks (word, label, composite), the degree of resemblance (phonetic, visual, structural), the nature of the goods, the similarity of the trades, and the class of purchasers and their level of care.
Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories [AIR 1965 SC 980]
The Supreme Court established the distinction between infringement and passing off. In an infringement action, the plaintiff need only show that the defendant has used a deceptively similar mark — actual confusion or damage need not be proved. In a passing off action, the plaintiff must additionally prove goodwill, misrepresentation, and damage. The Court observed that "in the case of an infringement action, the onus is lighter."
Pernod Ricard India v. United Breweries [2024 — Delhi HC, followed by SC]
The Delhi High Court held that trademark infringement under Section 29(4) (dilution) does not require the marks to be used on similar goods — protection extends to dissimilar goods where the registered mark has a reputation in India. This "anti-dilution" protection guards against the whittling away of the distinctive character of famous marks.
Types of trademark infringement
- Direct infringement: Use of an identical or deceptively similar mark on identical or similar goods/services (Section 29(1)-(3))
- Dilution: Use on dissimilar goods that takes unfair advantage of or is detrimental to the reputation of a well-known mark (Section 29(4))
- Trade name infringement: Use of a registered mark as a business or company name (Section 29(5))
- Comparative advertising infringement: Advertising that takes unfair advantage of the mark (Section 29(8))
Why this matters
Trademark infringement is one of the most frequently litigated areas of intellectual property law in India. The remedies available are both civil and criminal, making trademark enforcement a powerful tool for brand protection.
For brand owners, civil remedies include injunction (interim and permanent), damages or account of profits, delivery up of infringing goods, and costs. Criminal remedies under Sections 103-104 of the Act include imprisonment of 6 months to 3 years and fines of Rs 50,000 to Rs 2 lakh. The criminal route is particularly effective against counterfeiters.
For defendants, the Act provides several defences under Section 30, including honest use of one's own name, use of descriptive indications in good faith, and prior use of an unregistered mark. The distinction between infringement (which requires registration) and passing off (which does not) means that a defendant who successfully challenges the plaintiff's registration can still face a passing off claim.
Related terms
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Frequently asked questions
What is the difference between trademark infringement and passing off?
Infringement is a statutory remedy under Section 29 that requires the plaintiff to hold a registered trademark. Passing off is a common law remedy that protects unregistered marks based on goodwill. In infringement, the plaintiff need only prove use of a deceptively similar mark; in passing off, the plaintiff must additionally prove goodwill, misrepresentation, and damage.
Can a registered trademark be infringed by use on completely different goods?
Yes. Under Section 29(4), if the registered trademark has a reputation in India, it can be infringed by use on dissimilar goods or services if the use without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the mark. This is the anti-dilution provision.
What is the penalty for trademark infringement in India?
Civil remedies include injunction, damages, and account of profits. Criminal penalties under Sections 103-104 include imprisonment of 6 months to 3 years and fines of Rs 50,000 to Rs 2 lakh. The criminal provisions are non-bailable, making them particularly deterrent for counterfeiters.
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.