Registered vs Unregistered Trademark in India: Infringement, Passing Off and the ® Symbol
Registered vs unregistered trademark: statutory infringement rights and ® use vs passing-off actions that need proof of goodwill. Why registration pays.
Short answer
A registered trademark gives you statutory rights to sue for infringement, the right to use ®, and prima facie proof of ownership, making enforcement faster and cheaper. An unregistered mark is protected only through a passing-off action, where you must prove goodwill, misrepresentation and damage. Register your main brand early, even if you have used it for years.
- Infringement action
- Only for registered marks
- Passing off
- Available for registered and unregistered marks
- ® symbol
- Registered marks only
- TM symbol
- Can be used freely
- Registration term
- 10 years, renewable
- Filing fee
- ₹4,500 or ₹9,000 per class
What rights does each give?
Registration under the Trade Marks Act 1999 gives the owner the exclusive right to use the mark for the registered goods or services and to sue for infringement when others use an identical or deceptively similar mark. The registration certificate is prima facie evidence of validity, so you start with a legal presumption in your favour.
An unregistered mark has no statutory infringement right. The owner must sue for passing off, a common law remedy, and prove that the mark has goodwill, that the defendant's use misrepresents a connection, and that this causes damage. That proof requires sales records, advertising and customer evidence.
Side-by-side comparison
The table compares the practical position of a business with a registered mark against one relying only on use. Both can sue for passing off, but only a registered owner can sue for infringement.
| Factor | Registered trademark | Unregistered trademark |
|---|---|---|
| Legal action | Infringement and passing off | Passing off only |
| Burden of proof | Registration is prima facie evidence | Must prove goodwill, misrepresentation, damage |
| Geographic scope | All of India | Limited to where goodwill exists |
| Symbol | ® allowed | TM only; ® use is an offence |
| Licensing and assignment | Recorded with Registry, easy to value | Possible but harder to prove ownership |
| Customs border protection | Can be recorded with customs | Generally not available |
| Opposing similar applications | Strong basis | Possible, but needs evidence of prior use |
| Investor due diligence | Clean asset | Flagged as risk |
| Cost | Official fee per class plus renewal | No fee, but higher litigation cost |
What does registration involve?
You file Form TM-A online in the relevant classes, at ₹4,500 per class for individuals, startups and small enterprises, or ₹9,000 per class for others. The Registry examines the application, may raise objections that must be answered, and then advertises the mark in the Trade Marks Journal for possible opposition. If unopposed, the mark proceeds to registration.
Registration lasts 10 years from the application date and can be renewed indefinitely. Prior users of an unregistered mark are protected against a later registered owner to the extent of their continuous earlier use, which is why early filing matters for both sides.
How strong is a passing-off claim in practice?
Passing off can succeed, and Indian courts have protected well-known unregistered marks. But the claimant must assemble evidence of sales, advertising spend, media coverage and customer confusion, and the protection extends only where goodwill can be shown. For a young business with limited sales history, proving goodwill is often the hardest part.
Interim injunctions, which stop copying while the case runs, are easier to obtain when the plaintiff holds a registration, because the statutory presumption of validity shifts the burden. That speed often decides whether copying stops before real damage is done.
Which should you choose?
Registration is almost always worth it for a brand you plan to keep. The question is usually which marks and classes to file first, and these rules help you prioritise within a limited budget.
- Main company or product brand: register now in your core classes.
- Logo and wordmark both important: file the wordmark first, then the logo.
- Testing names before launch: run a search and file for the final choice before public launch.
- Already using an unregistered mark for years: file anyway and claim your user date.
- Someone copying you and you are unregistered: consult an advocate on passing off and file your application immediately.
Related services
Sources
- Trademark registration fees in India, First Schedule to Trade Marks Rules 2017 (Intepat)
- Trademark registration in India: complete guide (Legal Suvidha)
Written by the Refogo Editorial Team from the official sources above and checked on 2026-10-31. Laws, rates and due dates change, and authorities often extend deadlines, so confirm your own case with a qualified professional. This is general information, not legal or tax advice. Read our editorial policy or report an error to support@refogo.com.
Common questions
Can I sue for infringement if my trademark is only applied for?
No. An infringement suit needs a registered mark. While the application is pending, you can rely on passing off if you have goodwill.
Is it illegal to use ® before registration?
Yes. Falsely representing a mark as registered is an offence under the Trade Marks Act. Use TM until the registration certificate is issued.
Does an unregistered trademark have any protection?
Yes, through a passing-off action, but you must prove goodwill and deception, which is slower and more expensive than an infringement case.
Can a later registered owner stop me using my older unregistered mark?
Not if you can prove continuous use from a date earlier than both their use and their registration. Prior user rights protect you, though evidence is essential.