An intellectual property suit in India is won or lost on the affidavit and the annexures filed on day one. The interim application is heard on them, the ex parte order is granted on them, and under the commercial courts rules a plaintiff who files without a document generally cannot use it later. Investigation and evidence therefore come before pleading, not after. This guide sets out what the file needs and how each piece is obtained.
Quick reference
| The right | Registration certificates, renewals, assignments recorded; for unregistered rights, dated evidence of first use |
| Reputation | Sales figures, advertising spend, media coverage, awards, market presence — with dates and certification |
| The infringement | The product or content, bought or captured; the invoice; dated screenshots; the comparison |
| The investigator | A report and affidavit of what was seen, bought and said |
| Electronic records | A certificate under the evidence law, from the person who produced the record |
| The rules | All documents with the plaint; a statement of truth; later documents only with leave |
| After filing | The local commissioner’s report; disclosure from the defendant |
Proving the right
For a registered trademark, patent or design, the certificate, the current renewal, and where the plaintiff is not the original owner, the recorded assignment. For copyright, the registration certificate if there is one, and otherwise the evidence of authorship and ownership: the dated original, the contract under which it was made, the assignment from the author. Chain-of-title gaps — an unrecorded assignment, a contractor who never signed — are found by defendants and should be found by the plaintiff first.
For unregistered rights — passing off, unregistered copyright — the plaintiff must prove use and reputation from the beginning. Dated invoices from the first sales, the first advertisements, the first press. Businesses rarely keep these; the ones that do win passing off cases.
Proving reputation
Reputation and goodwill are proved by numbers and their sources: annual sales under the mark, ideally certified by a chartered accountant; advertising and promotional expenditure, similarly; media coverage, with dated copies; awards, rankings, market-share data, social media reach, the size of the distribution network. The figures should be given year by year, and the documents that support them annexed. Where a mark is claimed to be well known, the evidence should be organised around the factors the Trade Marks Act lists.
Proving the infringement
The product or content itself. Bought, not just photographed. A trap or test purchase by an investigator or an employee, with the invoice, the packaging, the receipt and the payment record, dated and preserved. For online sellers, the order, the delivery, the packaging as received and the listing as it stood. For content, a dated capture of the page, the stream or the app, and a downloaded copy.
The comparison. Side-by-side images of the plaintiff’s and the defendant’s product, mark, packaging or work, prepared so that the judge sees the similarity without explanation.
The scale. Evidence of how widely the infringement is occurring — the number of outlets, listings, cities; the defendant’s advertising; its own claims about volume. It supports the balance of convenience, the John Doe order, and later the damages.
The defendant. Company records, the WHOIS, the marketplace seller profile, the GST registration, the premises. The suit needs a defendant who can be served, and the commissioner needs an address.
The investigator
A professional investigator’s report records visits, purchases, conversations with staff and observations of premises, and is put in evidence through the investigator’s affidavit, with the purchases and photographs annexed. Courts accept it routinely at the interim stage; at trial the investigator is a witness. The report should be factual, dated and specific, and should record what was said — an employee’s confirmation that the goods come from a particular factory is the kind of evidence that reaches the supplier. Investigators must act lawfully: no entrapment beyond an ordinary purchase, no misrepresentation that would itself be an offence, no trespass.
Electronic evidence
Screenshots, downloads, emails, WhatsApp messages, marketplace records and website captures are electronic records, and the evidence law requires a certificate from the person in charge of the device or system that produced them, describing how the record was made and confirming the device was working properly. The Supreme Court held in 2020 that the certificate is mandatory, not a formality, and the new evidence code that took effect in 2024 carries the requirement forward, with a stated format. Every screenshot in the file should have one, prepared when the screenshot is taken. Where the content is likely to be removed, use an archiving service as well, and capture the archive.
What the rules require
Under the commercial courts procedure the plaintiff must file, with the plaint, all documents in its power, possession, control or custody relating to the suit — those relied on and those relevant — with a statement of truth verifying the pleading, and a declaration that it has no other documents. Documents not filed cannot be relied on later without leave, which is granted only for reasonable cause. The plaint itself must set out the cause of action with particulars. A plaintiff that files a thin plaint to get an ex parte order and intends to supplement later is taking a risk the rules are designed to punish.
The defendant, in turn, must file its documents with the written statement, within a hard limit of 120 days.
After filing
The local commissioner appointed with an ex parte order brings back the evidence the plaintiff could not get: an inventory of stock, photographs of premises, seized records, samples, and a report on what was found and said. It is the single most valuable document in a counterfeiting case, and it is why ex parte relief is sought.
Disclosure and interrogatories compel the defendant to produce accounts, supplier and customer details and sales figures, which are the basis of an account of profits and of damages. Admissions sought early narrow the trial.
Preserving what a takedown erases
The instinct on finding infringement online is to have it removed. Do the evidence first. Once a listing is taken down or a site blocked, the screenshot and the archive are all that remain, and the court will want to see what was there. Capture, certify, archive, buy — then report.
Frequently asked questions
What evidence do I need to file an IP infringement suit in India? Proof of the right — certificates, assignments, or for unregistered rights dated evidence of use; proof of reputation — certified sales and advertising figures, coverage; proof of the infringement — the product or content bought or captured, with invoices, dated screenshots and a side-by-side comparison; and the defendant’s identity and address. Under the commercial courts rules, all of it is filed with the plaint.
What is a trap purchase? A purchase of the infringing product by an investigator or employee, documented with the invoice, packaging, receipt and payment record, to prove that the defendant is selling it. It is the standard proof of infringement in Indian IP cases.
Is an investigator’s report admissible? Yes, through the investigator’s affidavit with the purchases and photographs annexed. It is routinely relied on at the interim stage, and the investigator gives evidence at trial.
Do screenshots need a certificate to be admissible in India? Yes. Electronic records require a certificate from the person responsible for the device or system that produced them, which the Supreme Court has held mandatory and which the 2024 evidence code retains. Prepare it when the screenshot is taken.
Can I file documents after the plaint in a commercial suit? Only with the court’s leave, for reasonable cause. The rules require all documents in the plaintiff’s possession to be filed with the plaint, with a statement of truth, and documents not filed cannot generally be relied on later.
What does a local commissioner’s report contain? An inventory of stock and materials found, photographs of the premises, seized records and samples, and an account of what was found and said during the visit. It is the plaintiff’s evidence of the scale of the infringement and the basis for damages.
Useful official resources
- IP India — public search — verifying registrations
- Ministry of Corporate Affairs — company master data — identifying corporate defendants
See our related notes on interim injunctions, damages and costs and anti-counterfeiting actions.
Building a case file, or unsure whether what you have will hold up? Talk to us.