In force · As amended up to 2026-08
1. Cls. (xxvi), (xxvii) and (xxviii) omitted by Act 40 of 2010, s. 9, (w.e.f. 8-7-2013).
2. Subs. by Act 7 of 2017, s. 161, for "Chairman" (w.e.f. 26-5-2017).
3. Subs. by s. 161, ibid ., for "Vice-Chairman" (w.e.f. 26-5-2017).
4. Clauses (xxxi) and (xxxii) omitted by Act 33 of 2021, s. 21 (w.e.f. 4-4-2021).
5. Subs. by s. 21, ibid ., for "Appellate Board" (w.e.f. 4-4-2021).
6. Ins. by Act 18 of 2023, s. 2 and Schedule (w.e.f. 1-8-2024).
immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
1. Subs. by Act 40 of 2010, s. 8, for "applications" (w.e.f. 8-7-2013).
(2) Where a person has made an application for the registration of a trade mark in a convention country or country which is a member of a group of countries or union of countries or Inter-Governmental Organisation and that person, or his legal representative or assignee, makes an application for the registration of the trade mark in India within six months after the date on which the application was made in the convention country or country which is a member of a group of countries or union of countries or Inter-Governmental Organisations, the trade mark shall, if registered under this Act, be registered as of the date on which the application was made in the convention country or country which is a member of a group of countries or union of countries or Inter-Governmental Organisation and that date shall be deemed for the purposes of this Act to be the date of registration.
(3) Where applications have been made for the registration of a trade mark in two or more convention countries or country which are members of group of countries or union of countries or Inter-Governmental Organisation, the period of six months referred to in the last preceding sub-section shall be reckoned from the date on which the earlier or earliest of those applications was made.
countries or country which are members of group of countries or union of countries or
(4) Nothing in this Act shall entitle the proprietor of a trade mark to recover damages for infringement which took place prior to the date of application for registration under this Act.
(iii) the duration, extent and geographical area of any promotion of the trade mark, including advertising or publicity and presentation, at fairs or exhibition of the goods or services to which the trade mark applies;
(iv) the duration and geographical area of any registration of or any application for registration of that trade mark under this Act to the extent that they reflect the use or recognition of the trade mark;
(v) the record of successful enforcement of the rights in that trade mark, in particular the extent to which the trade mark has been recognised as a well-known trade mark by any court or Registrar under that record.
(7) The Registrar shall, while determining as to whether a trade mark is known or recognised in a relevant section of the public for the purposes of sub-section (6), take into account—
(i) the number of actual or potential consumers of the goods or services;
(ii) the number of persons involved in the channels of distribution of the goods or services;
1. Subs. by Act 40 of 2010, s. 2, for clause (a) (w.e.f. 8-7-2013).
- (iii) the business circles dealing with the goods or services,
to which that trade mark applies.
(8) Where a trade mark has been determined to be well known in at least one relevant section of the public in India by any court or Registrar, the Registrar shall consider that trade mark as a well-known trade mark for registration under this Act.
(9) The Registrar shall not require as a condition, for determining whether a trade mark is a well-known trade mark, any of the following, namely:—
(i) that the trade mark has been used in India;
(ii) that the trade mark has been registered;
(iii) that the application for registration of the trade mark has been filed in India;
(iv) that the trade mark—
- (a) is well-known in; or
(b) has been registered in; or
(c) in respect of which an application for registration has been filed in,
- any jurisdiction other than India, or
(v) that the trade mark is well-known to the public at large in India.
(10) While considering an application for registration of a trade mark and opposition filed in respect thereof, the Registrar shall—
(i) protect a well-known trade mark against the identical or similar trade marks;
(ii) take into consideration the bad faith involved either of the applicant or the opponent affecting the right relating to the trade mark.
(11) Where a trade mark has been registered in good faith disclosing the material informations to the Registrar or where right to a trade mark has been acquired through use in good faith before the commencement of this Act, then, nothing in this Act shall prejudice the validity of the registration of that trade mark or right to use that trade mark on the ground that such trade mark is identical with or similar to a well-known trade mark.
(iv) as to the place or country in which or the time at which any goods or services were made, produced or provided, as the case may be; or
(v) as to the name and address or other indication of the identity of the manufacturer or of the person providing the services or of the person for whom the goods are manufactured or services are provided; or
(vi) as to the mode of manufacture or producing any goods or providing services; or
(vii) as to the material of which any goods are composed; or
(viii) as to any goods being the subject of an existing patent, privilege or copyright,
and includes—
(a) any description as to the use of any mark which according to the custom of the trade is commonly taken to be an indication of any of the above matters;
(b) the description as to any imported goods contained in any bill of entry or shipping bill;
1. Subs. by Act 33 of 2021, s. 21, for clause (s) (w.e.f. 4-4-2021).
(c) any other description which is likely to be misunderstood or mistaken for all or any of the said matters;
(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; and—
(i) in relation to Chapter XII (other than section 107), a registered trade mark or a mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark; and
(ii) in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark;
(zc) "transmission" means transmission by operation of law, devolution on the personal representative of a deceased person and any other mode of transfer, not being assignment;
(zd) "Technical Member" means a Member who is not a Judicial Member;
1* * * * *
(zg) "well known trade mark", in relation to any goods or services, means a mark which has become so to the substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first-mentioned goods or services.
(2) In this Act, unless the context otherwise requires, any reference—
(a) to "trade mark" shall include reference to "collective mark" or "certification trade mark";
(b) to the use of a mark shall be construed as a reference to the use of printed or other visual representation of the mark;
(c) to the use of a mark,—
(i) in relation to goods, shall be construed as a reference to the use of the mark upon, or in any physical or in any other relation whatsoever, to such goods;
(ii) in relation to services, shall be construed as a reference to the use of the mark as or as part of any statement about the availability, provision or performance of such services;
(d) to the Registrar shall be construed as including a reference to any officer when discharging the functions of the Registrar in pursuance of sub-section (2) of section 3;
(e) to the Trade Marks Registry shall be construed as including a reference to any office of the Trade Marks Registry.
(3) For the purposes of this Act, goods and services are associated with each other if it is likely that those goods might be sold or otherwise traded in and those services might be provided by the same business and so with descriptions of goods and descriptions of services.
(4) For the purposes of this Act, "existing registered trade mark" means a trade mark registered under the Trade and Merchandise Marks Act, 1958 (43 of 1958) immediately before the commencement of this Act.
1. Clauses (ze) and (zf) omitted by Act 33 of 2021, s. 21 (w.e.f. 4-4-2021).
Source: India Code