Registered vs. Unregistered Trademarks in India: Understanding Your Legal Rights

In India, the protection of your brand identity is a critical aspect of business success. Whether it’s your distinctive brand name, unique logo, or memorable slogan, these elements build goodwill and distinguish your offerings in the marketplace. While the Trademarks Act, 1999, provides a robust framework for trademark registration in India, it’s important for businesses to understand that rights can also arise from simply using a mark, even if it’s unregistered.¹

However, the legal protection and ease of enforcement differ significantly between registered trademarks and unregistered trademarks.² Understanding these distinctions is crucial for safeguarding your business in the event of trademark infringement or misuse.³

The Foundation: What Are They?

• Registered Trademark: This is a mark that has been formally examined and accepted by the Indian Trademark Registry (part of IP India) and for which a Certificate of Registration has been issued.⁴ The owner gains statutory rights under The Trademarks Act, 1999.⁵ You can use the ® symbol with a registered trademark.
• Unregistered Trademark: This is a mark that is in use in the market but has not undergone the formal trademark registration process. Its rights primarily stem from common law, based on the actual use and reputation it has acquired among consumers.⁶ You can use the ™ (for goods) or ℠ (for services) symbols with an unregistered mark to indicate a claim to trademark rights.⁷

Key Legal Differences: Registered vs. Unregistered

The table below highlights the crucial distinctions in legal rights and enforcement for registered vs. unregistered trademarks in India:

Feature	Registered Trademark	Unregistered Trademark
Legal Basis of Rights	Statutory rights under The Trademarks Act, 1999.	Common Law rights (developed through court judgments and precedents).
Prima Facie Evidence	The Certificate of Registration is prima facie (at first sight) evidence of validity and ownership. Burden of proof is largely on the infringer.	Owner must prove prior use, goodwill, and reputation in the market. Burden of proof is entirely on the owner.
Action Against Misuse	Can file a suit for Trademark Infringement under Section 29 of the Trademarks Act. This is a powerful, statutory remedy.	Can file an action for Passing Off under common law (recognized by Section 27(2) of the Trademarks Act). This is a tort of unfair competition.
Scope of Protection	Nationwide protection in India for the goods/services specified in the registration.	Limited to the geographical area where the mark has established reputation and goodwill.
Legal Remedies	Injunctions (temporary or permanent), damages, account of profits, delivery up/destruction of infringing goods. Easier to obtain.	Injunctions, damages, account of profits. More challenging to obtain as goodwill and actual damage must be proven.
Criminal Remedies	Easier to initiate criminal proceedings against counterfeiters and those falsifying marks.	Generally harder to pursue criminal remedies, though some provisions for falsification exist under the Act.
Use of Symbols	Can legally use the ® symbol.	Can use ™ (for goods) or ℠ (for services) to indicate a claim of ownership. Cannot use ®.
Valuation & Licensing	Recognized as a quantifiable intellectual property asset that can be easily licensed, assigned, or used as collateral.	More difficult to value, license, or assign due to lack of formal registration and clear ownership.
Deterrent Effect	Strong deterrent against potential infringers due to visible ® symbol and statutory backing.	Weaker deterrent as there’s no public record of rights.
Proof of Use	Registration itself provides presumptive evidence of the right to use.	Must actively demonstrate continuous and extensive use to prove goodwill and reputation.

Understanding “Passing Off” in India

The primary legal recourse for an unregistered trademark owner in India is an action for passing off. This common law remedy is based on the principle that “no man is entitled to represent his goods or business as the goods or business of another.”

To succeed in a passing off action, the unregistered trademark owner generally needs to prove three elements (often referred to as the “classic trinity”):⁸

1. Goodwill and Reputation: The plaintiff’s mark must have acquired significant goodwill and reputation in the market.⁹ This often requires substantial evidence of sales, advertising, longevity of use, and public recognition.
2. Misrepresentation: The defendant, through their use of a similar mark, has made a misrepresentation to the public, leading or likely to lead them to believe that their goods or services are those of the plaintiff.¹⁰
3. Damage: The plaintiff has suffered or is likely to suffer damage (e.g., loss of sales, dilution of reputation) as a result of the defendant’s misrepresentation.¹¹

While passing off does offer protection, it is a more challenging and often more expensive legal battle compared to an infringement suit for a registered trademark.¹²

Conclusion: Why Registered is Superior

While India’s law respects prior use, the advantages of a registered trademark far outweigh the limited protections offered to an unregistered mark.¹³ For any business serious about brand protection and long-term growth, especially in the evolving landscape of e-commerce and digital presence, trademark registration in India is an indispensable step.

It provides legal certainty, nationwide coverage, easier enforcement, and transforms your brand name and logo into a powerful, quantifiable intellectual property asset.¹⁴ Don’t leave your brand identity vulnerable; secure its future by pursuing trademark registration with the Indian Trademark Registry.

Avinash Bhatt
Email: Bhattavi93@gmail.com