Many business owners in India believe that trademark protection begins only after formal registration with the Trademark Registry. That's not entirely accurate. An unregistered trademark India does carry certain legal rights, but the scope of that protection is significantly narrower than what a registered mark provides.
Under Indian law, you can use a brand name, logo, or symbol to identify your goods or services without ever filing a trademark application. The moment you start using a distinctive mark in the course of trade, you acquire what legal experts call common law trademark rights. These rights exist independently of the statutory registration system governed by the Trade Marks Act, 1999. The familiar TM symbol that you see on many products indicates precisely this: the mark is being claimed as a trademark but hasn't yet been registered.
However, common law protection comes with serious limitations. Without registration, you cannot file an infringement suit under the Act. Your only legal recourse against someone copying your brand is a passing off action, which requires you to prove goodwill, misrepresentation, and actual damage. This guide explains what rights an unregistered trademark holds in India, where those rights fall short, and why formal registration remains the smarter choice for any serious business.
What is an Unregistered Trademark in India
An unregistered trademark is any mark, name, logo, symbol, or sign that a business uses to identify its goods or services but has not formally registered with the Controller General of Patents, Designs, and Trade Marks. The mark may be in active commercial use, it may be well-known in a specific market, and it may have built significant consumer recognition. But without registration, it doesn't appear in the official trademark register maintained by the Intellectual Property India office.
Under the Trade Marks Act, 1999, registration is not mandatory. Section 27(1) of the Act states that no person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark. This is the critical limitation. The Act explicitly denies the statutory remedy of infringement to unregistered marks.
At the same time, Section 27(2) preserves the common law remedy. It states that nothing in the Act shall be deemed to affect the rights of action against any person for passing off goods or services as the goods of another person. This means the law recognises that unregistered marks carry certain inherent rights based on use. But those rights must be enforced through the tort of passing off, not through the streamlined infringement provisions of the Act.
The distinction is important. An infringement suit under the Act is relatively straightforward: you prove registration, show the defendant's mark is identical or deceptively similar, and the court can grant injunctions and damages. A passing off action is far more complex and evidence-intensive, requiring proof of three distinct elements: goodwill, misrepresentation, and damage.
Common Law Trademark Rights: What Protection Do You Get
Common law trademark India rights arise from the actual use of a mark in trade. The moment you start selling products or offering services under a distinctive name, you begin building goodwill associated with that name. Indian courts have consistently upheld the principle that the first user of a mark, even without registration, has a superior claim over subsequent users who may have obtained registration.
This principle is codified in Sections 34 and 35 of the Trade Marks Act, 1999. Section 34 protects prior users by stating that nothing in the Act shall entitle the registered proprietor of a trademark to interfere with or restrain the use of a trademark by any person who has been continuously using that trademark from a date prior to the registered mark's use or registration, whichever is earlier. This is a powerful safeguard for businesses that have been using a mark for years but never got around to filing for registration.
Section 35 further protects bona fide users of their own name or the name of their place of business, descriptive terms relating to the character or quality of goods, and indications of geographical origin. These provisions ensure that legitimate, honest use of a name in trade isn't shut down merely because someone else registered a similar mark later.
In practice, common law rights mean you can continue using your unregistered mark in the geographic area and market segment where you've established goodwill. If a competitor starts using a confusingly similar mark in that same area and causes public confusion, you can bring a passing off action in court. Courts can grant injunctions to stop the infringing use and award damages if you prove financial loss.
Passing Off: The Legal Remedy for Unregistered Marks
Passing off is the primary legal weapon available to owners of unregistered trademarks in India. It's a common law tort that predates the statutory trademark system and continues to operate alongside it. The Supreme Court of India defined passing off in Cadila Healthcare Ltd v. Cadila Pharmaceuticals Ltd as the species of unfair trade competition by which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established.
To succeed in a passing off claim, you must establish three elements, often referred to as the classical trinity. First, you must prove that your mark has acquired goodwill and reputation in the relevant market. This requires evidence of sales figures, advertising expenditure, duration of use, customer testimonials, media coverage, and market presence. A mark used for only a few months with minimal sales will struggle to meet this threshold.
Second, you must demonstrate that the defendant's actions amount to misrepresentation. This means showing that the defendant is using a mark that is identical or confusingly similar to yours, and that this use is likely to mislead the public into believing that the defendant's goods or services originate from you or are associated with your business. The test is whether an average consumer, exercising ordinary caution, would be confused.
Third, you must prove actual or likely damage to your business. This could be loss of sales, dilution of brand reputation, or diversion of customers. Courts sometimes infer damage from the misrepresentation itself, but concrete evidence of financial harm strengthens your case considerably.
The burden of proof in a passing off action is heavier than in an infringement suit. You're essentially building your case from scratch, without the presumption of validity that comes with a registration certificate. This makes passing off litigation more expensive, more time-consuming, and less predictable in its outcome.
Registered vs Unregistered Trademark: Key Differences
Understanding the gap between registered and unregistered trademark protection is essential for making an informed decision about your brand strategy. The following comparison highlights the practical differences.
| Registered Trademark | Unregistered Trademark |
| Listed in official trademark register | Not recorded in any government database |
| Can use the registered symbol after name | Can only use the TM symbol |
| Infringement suit available under Section 29 | No infringement remedy, only passing off |
| Registration serves as prima facie evidence of ownership | Ownership must be proved through evidence of use |
| Protection is nationwide from the date of application | Protection limited to the geographic area of established goodwill |
| Easier to enforce, less evidence required | Heavy burden of proof for goodwill, misrepresentation, and damage |
| Can be licensed and assigned with clear legal backing | Assignment possible but lacks statutory certainty |
| Valid for 10 years, renewable indefinitely | No fixed validity, depends on continuous use |
| Acts as a deterrent against copycats | Limited deterrent value without government record |
| Can be used as collateral for loans | Difficult to monetise as an asset |
The TM Symbol vs the Registered Symbol: What Each Means
You've likely noticed two different symbols next to brand names: TM and the circled R. These aren't interchangeable, and using the wrong one can create legal problems.
The TM symbol indicates that the owner is claiming trademark rights over the mark. Anyone can use this symbol, even without filing an application. It serves as a public notice that you consider the name, logo, or design to be your trademark. While it doesn't provide legal protection on its own, it puts competitors on notice that you're asserting ownership over the mark.
The circled R symbol, on the other hand, can only be used after your trademark has been formally registered under the Trade Marks Act, 1999. Using this symbol without registration is a legal offence under Section 107 of the Act, punishable with imprisonment up to three years, a fine, or both. Many businesses make the mistake of using the R symbol prematurely, either out of ignorance or impatience, and expose themselves to criminal liability.
For businesses operating with unregistered marks, consistently using the TM symbol across packaging, websites, invoices, and marketing materials is a good practice. It builds a documented trail of trademark use that can support a passing off claim if one becomes necessary. However, to access the full suite of legal protections and use the registered symbol with confidence, formal trademark registration is the definitive step.
Why Registration is Still the Better Choice
While common law rights offer a safety net, relying solely on an unregistered trademark India is a risky strategy. The limitations are practical, not just theoretical.
Geographic scope is the first concern. An unregistered mark is protected only in the area where you've built goodwill. If you operate a restaurant chain in Mumbai, your unregistered brand name may not be protectable if someone starts using the same name in Chennai. Registration, by contrast, provides nationwide protection from the date of application filing.
Speed of enforcement is another factor. When you hold a registration certificate, courts can grant interim injunctions quickly because the certificate serves as prima facie proof of your rights. Without registration, you must first establish through extensive evidence that you own the mark, that it has goodwill, and that the defendant's use causes confusion. This preliminary evidence-gathering can take months and allows the infringer to continue operating in the meantime.
Monetisation potential is significantly higher with a registered mark. A registered trademark is an intangible asset that appears on your balance sheet, can be licensed to franchisees or distributors for royalty income, and can even be used as security for bank loans. An unregistered mark lacks this formal recognition, making it harder to leverage commercially.
For businesses that are still setting up their formal structure, combining trademark registration with your company incorporation creates a solid legal foundation. Whether you're registering a private limited company or forming an LLP, filing for trademark protection simultaneously ensures your brand is secured from day one.
Situations Where Unregistered Marks Have Legal Standing
Despite the limitations, there are specific situations where Indian law gives meaningful weight to unregistered trademarks.
Prior use is the most significant protection. Under Section 34 of the Act, a prior user of a mark can continue using it even if someone else subsequently registers the same or a similar mark. Courts have consistently held that the person who first used the mark in the market has a stronger claim than the person who first filed for registration. This principle protects businesses that have been trading under a particular name for years without formal registration.
Well-known marks receive enhanced protection regardless of registration status. Section 11(6) of the Act states that a trademark shall not be registered if it is identical or similar to a well-known trademark, even if the well-known mark is not registered. Courts consider factors like the degree of knowledge among the relevant public, the duration and geographic extent of use, advertising expenditure, and any judicial recognition the mark has received.
Opposing third-party registrations is another area where unregistered mark owners have standing. Under Section 11(3)(a) of the Act, a trademark shall not be registered if its use in India is liable to be prevented by virtue of any law, in particular the law of passing off protecting an unregistered trade mark used in the course of trade. This means you can oppose someone else's trademark application based on your prior use of an unregistered mark.
These protections exist, but they require substantial evidence to invoke. Maintaining detailed records of your trademark use, including dated invoices, advertisements, packaging samples, and customer correspondence, is essential. For businesses that also need to manage compliance obligations like GST registration, aligning your trademark evidence with your business documentation creates a comprehensive record.
How to Strengthen Your Position While Your Trademark is Unregistered
If you're operating with an unregistered mark, whether by choice or because your registration application is still pending, there are practical steps you can take to build a stronger legal position.
Document everything from the start. Save copies of every invoice, marketing campaign, social media post, packaging design, and customer interaction that features your brand name or logo. Date-stamp these records. In a passing off dispute, the court will want to see a clear timeline of your mark's use and the goodwill it has accumulated.
Use the TM symbol consistently across all touchpoints: your website, product packaging, business cards, email signatures, and social media profiles. This establishes a public claim to the mark and demonstrates your intent to assert ownership.
Build a strong online presence under your brand name. Register domain names that match your trademark. Secure your brand name across major social media platforms. Create content that reinforces the association between your brand name and your goods or services. This digital footprint serves as additional evidence of goodwill in court proceedings.
Most importantly, file your trademark application as soon as possible. The registration process takes 18 to 24 months in India, and your application date becomes the priority date for your claim. Even while the application is pending, you're in a stronger legal position than someone with no application at all. A trademark renewal strategy should also be planned for the long term, as protection lapses if renewal is missed after the 10-year validity period.
Conclusion
An unregistered trademark India does carry legal weight, but that weight is limited. Common law rights through passing off actions provide a baseline level of protection, and the Trade Marks Act, 1999 offers prior users certain statutory safeguards under Sections 34 and 35. However, these protections require substantial evidence, are geographically limited, and involve costlier, more complex litigation compared to the straightforward infringement remedies available to registered trademark owners.
For any business that takes its brand seriously, registration is not optional. It provides nationwide protection, serves as prima facie evidence of ownership, enables faster court enforcement, and transforms your brand name into a monetisable asset. The filing fee is modest, the process is largely online, and the advantages far outweigh the cost of inaction.
Don't leave your brand's legal future to chance. Whether you're starting a new venture or have been trading under an unregistered name for years, Patron Accounting can guide you through the trademark registration process from application to certificate, ensuring your brand is protected under the full force of Indian law.
