When Does A Trademark Cross The Line Into Infringement?

A trademark dispute is rarely resolved by establishing that two marks look alike. The real question is whether the impugned use violates an enforceable legal right under the applicable law. Answering that question requires an assessment of the competing marks, the goods or services concerned, the nature of the defendant’s use, any available defences and, ultimately, the evidence supporting the claim.

Under Indian law, the principal statutory framework is the Trade Marks Act, 1999. Section 28 addresses the rights conferred by registration, Section 29 deals with infringement of registered trademarks, and Section 27 distinguishes between infringement claims involving unregistered marks and the common-law remedy of passing off. Section 27(1) bars an infringement action in respect of an unregistered trademark, while Section 27(2) preserves the remedy of passing off. These are distinct causes of action, with different legal foundations and evidentiary requirements.