Last updated on August 8th, 2026 at 04:26 pm
TL;DR: An unregistered brand in India is not unprotected, but it is protected by a much weaker and slower remedy. Section 27 of the Trade Marks Act, 1999 bars an infringement suit for an unregistered mark, but expressly preserves the common law action for passing off. The catch is that passing off requires you to prove goodwill, misrepresentation, and damage from scratch in every dispute, using advertising spend, sales records, and market recognition as evidence, exactly what the Supreme Court weighed in N.R. Dongre v. Whirlpool Corporation (1996) 5 SCC 714. Registration replaces that burden with a certificate. It also unlocks things passing off cannot: listing under Amazon and Flipkart’s brand registries, a stronger negotiating position in franchise and licensing deals, and a defensible answer when an investor’s due diligence team asks who legally owns your brand name. The government fee to register is ₹4,500 to ₹9,000 per class under the Trade Marks Rules, 2017. The cost of not registering shows up later, and it is rarely that small.
Quick overview: This guide separates what the law actually gives an unregistered brand from what founders assume it gives them. It walks through the passing off doctrine and its evidentiary burden, two real Indian disputes that show what this costs in practice, why slapping a ® symbol on an unregistered mark is a punishable act under Section 107 of the Act, and what changes the moment you file.
What protection do you actually have without registration?
Section 27(1) of the Trade Marks Act, 1999 is explicit: no suit for infringement can be brought in respect of an unregistered trademark. That single line is why founders assume an unregistered brand has no legal recourse at all. Section 27(2) then immediately preserves the exception that matters: nothing in the Act affects the right of action against any person for passing off goods or services as those of another, or the remedies available for it.
Passing off is a common law tort, not a statutory right, and Indian courts apply what is often called the classic trinity, borrowed from Reckitt & Colman Products Ltd v. Borden Inc.: you must show goodwill built up in your mark, a misrepresentation by the defendant likely to deceive the public, and damage to your goodwill as a result. Every element has to be proved with evidence you generate yourself, invoices, advertising spend, market surveys, media coverage, rather than pointed to on a certificate. If your business is two years old and regional, that evidentiary record is often thin, and thin evidence is exactly where passing off claims lose.
Registration under Section 28 gives you something categorically different: the exclusive right to use the mark for the goods or services it covers, across India, backed by a certificate that is prima facie proof of ownership the moment you file a suit under Section 29 for infringement. You are no longer building a case about reputation from zero. You are enforcing a right that already exists on paper.
What this costs in practice: two Indian cases, not hypotheticals
The clearest way to see the gap between these two protections is to look at what actually happened when Indian businesses relied on each one.
Starbucks Corporation v. Sardarbuksh Coffee & Co. (Delhi High Court, CS (COMM) 1007/2018) shows what registration buys you. Starbucks had registered the word mark “STARBUCKS” in India back in 2001. When a Delhi coffee chain opened in 2015 under the name “Sardarbuksh,” with a similar circular logo, colour scheme, and phonetic resemblance, Starbucks did not need to build a passing off case from scratch. It sued for infringement of a registered mark, and the Delhi High Court found the marks deceptively similar under Section 2(1)(h) of the Act. The matter settled in September 2018, with Sardarbuksh agreeing to rebrand every outlet to “Sardarji-Bakhsh Coffee & Co.” and change its colour scheme, a costly rebrand for a business that had already built five outlets under the old name. Registration gave Starbucks a fast, clear path to that outcome.
N.R. Dongre v. Whirlpool Corporation (1996) 5 SCC 714 shows the other side, and why it is often misunderstood as proof that registration does not matter. Whirlpool’s Indian trademark registration had lapsed in 1977 after it was not renewed. In 1986, an unrelated party applied to register “Whirlpool” for washing machines in India and secured that registration in 1992. Whirlpool Corporation had to fight this as a passing off action, arguing trans-border reputation, meaning that its global advertising and reputation had reached Indian consumers even without a live Indian registration or a strong local sales presence. The Supreme Court ultimately sided with Whirlpool, but only after Whirlpool assembled and argued years of evidence of international advertising and recognition, all the way to the apex court. Whirlpool won specifically because it was Whirlpool, a company with decades of global brand history to draw on. A two-year-old Indian business making the same argument with a fraction of that evidentiary record faces a much harder and far less certain fight. This is also why the Supreme Court’s later decision in Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd. (2017) tightened the trans-border reputation doctrine, requiring proof of actual reputation and goodwill within India rather than reputation abroad alone, making the Whirlpool route even harder to rely on today than it was in 1996.
Neither case is a story about a business with zero protection. Both are stories about how much harder, slower, and more expensive that protection becomes without a registration certificate to point to.
TM is not a substitute for ®, and misusing ® is a punishable offence
A common half-measure is putting the TM symbol next to a brand name and assuming that is trademark protection. It is not, and it was never meant to be. The TM symbol is simply a public notice that you are claiming common law rights in a mark, exactly the passing off rights described above. It carries no statutory weight of its own.
The ® symbol is different, and it is not available to use freely. Under Section 148 of the Trade Marks Act, 1999, only a registered trademark may be marked as registered. Section 107 goes further: falsely representing a mark as registered when it is not is a criminal offence, punishable with imprisonment of up to three years, a fine, or both. Founders who add ® to an unregistered logo to look established are not closing a protection gap, they are creating a separate legal exposure on top of it.
What you actually lose without registration
Beyond the passing off burden, several concrete doors stay closed without a registration certificate.
E-commerce brand protection. Amazon’s Brand Registry and Flipkart’s equivalent programmes, which let you control your product listings, report counterfeit sellers, and access enhanced brand content, require a registered trademark or an active application in most product categories. Without one, you have limited recourse when someone else lists knock-offs under your name on the same platform where you sell.
Franchise and licensing deals. You cannot license or franchise a brand you do not clearly own. A franchisee’s lawyers will ask for the trademark registration certificate before signing anything, since a franchise agreement built on an unregistered, disputable mark is a liability for both sides. If franchising is anywhere in your plan, read our guide on how to legally protect your brand when franchising in India before you sign your first franchisee.
Investor due diligence. Investors run IP due diligence before every serious funding round, and an unregistered core brand is a flagged risk that either delays the round or gets reflected in a lower valuation. Our breakdown of IP due diligence for startups covers exactly what investors check and why brand ownership is usually near the top of that list.
Domain and cybersquatting disputes. If someone registers a domain using your brand name, a registered trademark is the strongest evidence in an INDRP complaint or a court action. See domain name and cybersquatting disputes: how INDRP and courts protect trademarks for how that process actually works.
Geographic and category expansion. Passing off protection is generally strongest where you have built actual reputation. If you expand to a new state or a new product category before anyone else files there, you can find a local player has already registered a confusingly similar mark and you are the one negotiating from a weaker position, not them.
The math: what registration costs versus what a dispute costs
Under the Trade Marks Rules, 2017, the government e-filing fee is ₹4,500 per class for individuals, DPIIT-recognised startups, and Udyam-registered MSMEs, and ₹9,000 per class for companies and LLPs. Filing in a second class doubles that, not the whole cost. Registration lasts ten years and is renewable indefinitely after that. Filing to registration typically takes eight months to over a year if unopposed, longer if someone files an opposition, which is precisely why filing early costs you nothing but time you were going to spend anyway building the brand.
Compare that to the Sardarbuksh outcome: a full rebrand across five operating outlets and every unopened location, new signage, new packaging, new marketing collateral, and legal fees for a Delhi High Court proceeding, all to fix a naming choice that a trademark class search would have flagged before the first outlet ever opened. Our trademark checklist before launching exists specifically to catch this before it becomes a rebrand instead of a filing fee.
Common myths about unregistered trademarks in India
“If I’ve been using my brand name for years, I don’t need to register it.” False. Years of use builds goodwill for a passing off claim, but it does not give you the exclusive statutory right, the faster enforcement route, or the e-commerce and franchising access that only registration provides. Long use makes your passing off case stronger; it does not make registration unnecessary.
“Registering my company name with the ROC or getting a GST number already protects my brand.” False. Company incorporation and GST registration confirm you exist as a legal entity and are tax-compliant. Neither examines whether your brand name conflicts with an existing trademark, and neither gives you any exclusive right to the name itself.
“My brand isn’t big enough yet to bother with a lawsuit-level asset like a trademark.” False, and this is the myth Sardarbuksh’s founders would probably contest today. Filing early, when your business is small, is exactly when it is cheapest and least contested. Waiting until you are big enough to be sued over the name is waiting until the exact moment the government fee becomes the least expensive thing in the process.
“A registered trademark protects my brand everywhere in the world.” False. Indian registration protects you within India, for the classes you filed. International protection requires separate filings or a Madrid Protocol application, covered in our guide to global trademark registration.
What to do if you are already operating without one
If you have been trading under an unregistered name for a while, the position is not lost, it is just less efficient than starting with registration would have been.
Start with a proper trademark class search under the Nice Classification’s 45 classes to confirm no one else already holds your mark in your category; our guide to all 45 trademark classes explains how classes are structured so you file in the right one the first time. File the application as soon as the search is clear, since every additional month of trading under an unregistered name is another month a competitor could file first. Keep and organise your evidence of use, invoices, advertising records, social media growth, and press coverage, in case you need to rely on passing off for the period before your registration comes through. If you discover someone has already copied your brand or logo, act on it directly rather than waiting for the registration process to finish; our guides on what to do if someone copied your brand and what to do if someone copied your logo cover the immediate options, including cease and desist notices, ahead of any court proceeding.
Frequently asked questions
Can I sue someone for using my brand name if I never registered a trademark?
Yes, but only under passing off, not trademark infringement. Section 27(2) of the Trade Marks Act, 1999 preserves your right to sue for passing off even without registration, but you must prove goodwill, misrepresentation, and resulting damage, the classic trinity from Reckitt & Colman Products Ltd v. Borden Inc., using your own evidence of reputation rather than a registration certificate.
Is using the TM symbol the same as registering a trademark?
No. The TM symbol only signals that you are claiming common law rights in a mark and carries no statutory protection by itself. Only a mark that has actually been registered can lawfully use the ® symbol under Section 148 of the Trade Marks Act, 1999.
What happens if I use the ® symbol without registering my trademark?
It is a criminal offence under Section 107 of the Trade Marks Act, 1999 to falsely represent a mark as registered, punishable with imprisonment of up to three years, a fine, or both. Use TM instead until your registration is actually granted.
How long does trademark registration take in India, and what does it cost?
Registration typically takes eight months to over a year if unopposed, longer if there is an objection or opposition. The government e-filing fee is ₹4,500 per class for individuals, DPIIT-recognised startups, and Udyam-registered MSMEs, and ₹9,000 per class for companies and LLPs, under the Trade Marks Rules, 2017.
Can a big brand lose a trademark dispute to a smaller unregistered business in India?
It is possible in theory if the smaller business has a genuinely earlier and well-documented use, but in practice the party with a registered mark and a documented filing date, like Starbucks in the Sardarbuksh dispute, has a far stronger and faster path to a favourable outcome than a party relying only on passing off.
Does an unregistered trademark stop me from selling on Amazon or Flipkart?
It does not stop you from selling, but it typically blocks access to Amazon’s Brand Registry and Flipkart’s equivalent brand protection programmes in most categories, which limits your ability to control your own listings and act against counterfeit sellers on the same platform.
Authored and reviewed by Prakhar Rai, Advocate, founder of My Legal Pal. Prakhar is enrolled with the Bar Council of India and has over ten years of experience advising individuals, founders, and companies on intellectual property and brand protection matters. He is an alumnus of the National Law School of India University, Bangalore, where he completed his Master of Business Laws, and of La Martiniere. Connect on LinkedIn.
This article is general information about Indian trademark law, not legal advice. Outcomes in passing off and infringement disputes depend heavily on the specific facts and evidence in each case. For advice on protecting your specific brand, speak to a qualified advocate. For the primary legislation referenced here, see the Trade Marks Act, 1999 and the Trade Marks Rules, 2017 on the India Code portal at indiacode.nic.in.
If your brand is still unregistered, the fastest way to close this gap is to file now, not after a dispute forces the issue. My Legal Pal handles the class search, filing, and objection response for trademark registration in India. Get a free trademark consultation.
