How-To · Trademark Enforcement · Last verified October 2026
How to File a Trademark Infringement Suit (2026)
Someone is selling goods under a mark that copies yours, and demand letters have not worked. The next step is a trademark infringement suit. Filing one well is less about drama and more about getting four things right: the cause of action, the court, the reliefs you ask for, and the interim order that stops the damage while the case runs. This guide walks through how a trademark infringement suit is filed in India under the Trade Marks Act, 1999, where it goes under the Commercial Courts Act, and what you can realistically win. It is general information, not legal advice, and IP enforcement is fact-specific, so run a real suit with counsel. Last verified October 2026.
- Cause of action: Section 29 infringement for a registered mark; Section 27 passing off for an unregistered one; often pleaded together.
- Forum: a Commercial Court or the commercial division of a High Court; the suit is not below the District Court, and you can sue where you carry on business (Section 134).
- Reliefs: injunction, plus damages or an account of profits (you elect one), and delivery up or destruction of infringing material (Section 135).
- Mediation: Section 12A pre-institution mediation is required for commercial suits, but a suit genuinely seeking urgent interim relief is exempt.
- The real fight: the interim injunction, decided on a prima facie case, balance of convenience and irreparable harm.
01Infringement or passing off
Start by naming the right cause of action, because it decides what you must prove.
- Infringement under Section 29 of the Trade Marks Act, 1999 is available to the proprietor of a registered trademark. You prove that the defendant used, in the course of trade, a mark identical or deceptively similar to your registered mark for the same or similar goods or services, in a way likely to cause confusion. Registration is your biggest asset here, because it gives a statutory right under Section 28.
- Passing off under Section 27 is the common-law remedy that protects an unregistered mark or reputation. You prove goodwill, a misrepresentation by the defendant, and damage. It is harder, because you carry the burden of proving reputation.
In practice many suits plead both: infringement of the registered mark and passing off in the alternative. For the detail of the statutory test, see Section 29 infringement, and for how the two actions differ, passing off versus infringement.
02Before you sue: the groundwork
A suit is only as strong as the evidence behind it. Before filing, assemble:
- Proof of your right. The registration certificate, the register entry, class and the chain of title if the mark was assigned to you.
- Proof of the defendant's use. Dated samples, invoices, product listings, packaging, website captures and, where possible, a purchase of the infringing goods.
- Evidence of confusion or deception. Side-by-side comparison, customer complaints, or instances where buyers were actually misled.
- Your reputation. Sales figures, advertising spend and market presence, which matter most for the passing-off limb.
Many brand owners send a cease and desist notice first. It can resolve the matter without litigation, but it also warns the infringer, who may rush to file their own proceedings or destroy evidence, so weigh the timing. See how to send a cease and desist notice for a trademark.
03Which court hears the suit
Two rules decide the forum. First, under Section 134 of the Trade Marks Act, 1999, a suit for infringement or passing off must be filed in a court not below the District Court, and the section lets the plaintiff sue where it resides or carries on business, which is a real advantage. Second, intellectual property disputes are commercial disputes under the Commercial Courts Act, 2015 (Section 2(c)(xvii)), so the suit is filed before a Commercial Court or, where a High Court has original civil jurisdiction, its commercial division.
The High Courts of Delhi, Bombay, Calcutta, Madras and Himachal Pradesh exercise original jurisdiction in such matters, and several run dedicated Intellectual Property Divisions that hear these suits. Where the suit does not fall in a High Court's original jurisdiction, it goes to the District Commercial Court of competent pecuniary jurisdiction. For more on jurisdiction, see Section 134 jurisdiction.
04Pre-institution mediation
The Commercial Courts Act adds a step many first-time litigants miss. Section 12A requires a plaintiff to exhaust pre-institution mediation before filing a commercial suit, unless the suit contemplates urgent interim relief.
Most trademark suits are filed precisely because the infringement is ongoing and urgent, so they seek an urgent interim injunction and are treated as exempt from compulsory pre-institution mediation. The Supreme Court has confirmed that where a plaintiff plausibly seeks urgent interim relief against continuing infringement, Section 12A mediation is not a bar to filing. But the urgency must be genuine: a suit that is not truly urgent and skips mediation can be rejected, so the plaint should set out the urgency clearly.
Pre-institution mediation under Section 12A is mandatory for commercial suits, but a trademark suit that genuinely seeks urgent interim relief is exempt.
05What to ask the court for
Section 135 of the Trade Marks Act, 1999 sets out the reliefs. Ask for the ones your facts support:
| Relief | What it does |
|---|---|
| Injunction | Restrains the defendant from using the infringing mark, permanently and, pending trial, by interim order |
| Damages or account of profits | Compensation for your loss, or the defendant handing over profits made; you elect one, not both |
| Delivery up or destruction | Infringing labels, packaging and goods delivered up for destruction or erasure of the mark |
Section 135 also allows interlocutory orders such as preserving evidence and restraining the defendant from dealing with assets. Note the honest limits: under the section, an account of profits or damages beyond nominal damages may be refused where the defendant was genuinely unaware of the registration and stopped once aware, so do not assume a large money award is automatic. The injunction is usually the relief that matters most.
06The interim injunction
In most trademark suits the real fight is the interim injunction, the order that stops the infringing use while the suit is pending, sometimes granted ex parte at the first hearing in urgent cases. Winning it turns on the classic three tests: a prima facie case, the balance of convenience in your favour, and irreparable harm if the order is refused.
This is why speed and clean evidence matter. A proprietor who moves promptly, with a clear registration and strong proof of confusing use, is in a far better position than one who delayed. An interim injunction often effectively decides the commercial dispute, because once the infringer is restrained, the incentive to keep fighting fades.
07Steps to file
In outline, a trademark infringement suit is filed like this:
- Confirm your right and the infringement with registration proof and dated evidence of the defendant's use.
- Decide the cause of action, usually infringement plus passing off in the alternative.
- Choose the forum, a Commercial Court or the commercial division of a High Court with jurisdiction under Section 134.
- Address Section 12A: plead the urgency that exempts the suit from pre-institution mediation, or complete mediation if there is no urgency.
- Draft the plaint with the reliefs under Section 135 and a strong interim injunction application.
- File and serve, then press the interim application at the first hearing.
Two caveats worth repeating: IP enforcement is fact-specific, and the right strategy depends on your registration, your evidence and the defendant's conduct. Get the forum and the interim application right, because those two choices shape the whole case.
08Where Claw fits
Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.
Filing a trademark suit is a litigation task, and Claw does not draft or file the plaint for you. Where Claw helps is once the infringement becomes a suit. Claw tracks the resulting matter across High Courts and Commercial Courts, part of 9,102 courts, benches and forums, with alerts and monitoring so a new order, interim application outcome or hearing date does not slip past a brand owner or in-house team. Its Legal GPT researches across 30 crore+ judgments, with Supreme Court decisions from 1950 and High Court decisions from 1990, so counsel can see how courts have treated Section 29 infringement, passing off and interim injunctions in comparable facts. Results return in under 5 seconds, and Claw does not train its AI models on your documents. To check whether a defendant, a competitor or your own brand already has litigation on record, run a case search across Indian courts by party name, and narrow to the Commercial Courts where IP suits sit. A clean result means nothing was found on the forums and date searched, not that nothing exists, and namesakes should be confirmed before you rely on a match. This is general information, not legal advice.
09Sources and further reading
- India Code (Trade Marks Act, 1999, Sections 27, 28, 29, 134, 135; Commercial Courts Act, 2015): indiacode.nic.in
- Office of the CGPDTM (trademark registry and status): ipindia.gov.in
- IP India online services (register search, e-filing): ipindiaonline.gov.in
- Claw: clawlaw.in
This guide is general information, not legal advice. Trademark enforcement is fact-specific; confirm the current statute and procedure and take advice from an IP lawyer before filing.
10Frequently asked questions
Where do I file a trademark infringement suit in India?
Before a Commercial Court or the commercial division of a High Court, because intellectual property disputes are commercial disputes under the Commercial Courts Act, 2015. Under Section 134 of the Trade Marks Act, 1999 the suit must be in a court not below the District Court, and the section lets a registered proprietor sue where it resides or carries on business, not only where the defendant is. Several High Courts run dedicated IP Divisions.
What is the difference between infringement and passing off?
Infringement under Section 29 of the Trade Marks Act, 1999 protects a registered trademark, and registration gives a statutory right that is easier to enforce. Passing off under Section 27 is the common-law remedy for an unregistered mark or reputation, where you must prove goodwill, misrepresentation and damage. Suits often plead infringement of the registered mark and passing off in the alternative.
What can I claim in a trademark suit?
Under Section 135 of the Trade Marks Act, 1999 you can seek an injunction to stop the infringing use, damages or an account of profits (you elect one, not both), and delivery up or destruction of infringing labels and goods. The court can also make interlocutory orders. Money relief beyond nominal damages may be refused where the defendant was genuinely unaware of the registration and stopped once aware.
Do I have to attempt mediation before filing?
Section 12A of the Commercial Courts Act, 2015 requires pre-institution mediation before a commercial suit, but a suit that genuinely contemplates urgent interim relief is exempt. Most trademark suits seek an urgent interim injunction against ongoing infringement, so they are treated as exempt, but the urgency must be real and pleaded clearly, or the plaint can be rejected for skipping mediation.
How important is the interim injunction?
Often decisive. The interim injunction stops the infringing use while the suit is pending, sometimes granted ex parte at the first hearing in urgent cases. It turns on a prima facie case, the balance of convenience and irreparable harm. A proprietor who moves quickly with a clean registration and strong evidence of confusing use is in the best position, and a granted injunction often settles the commercial dispute in practice.