Final judgment in an Indian intellectual property suit is years away. The order that decides the commercial outcome is the one made at the start: whether the defendant is restrained while the case is pending. Everything about how an infringement case is prepared follows from that, and this guide covers what the court asks, how it can be asked without notice, and the special forms the order has taken for digital and diffuse infringement.
Quick reference
| Test | A prima facie case; balance of convenience; irreparable harm that damages cannot repair |
| Ex parte | Granted where notice would defeat the purpose; reasons must be recorded; the defendant served immediately and heard soon after |
| With it | Appointment of a local commissioner to search, inventory and seize; orders to platforms, registrars and banks |
| Delay | Not by itself a bar in infringement cases; long acquiescence can be |
| Special orders | John Doe (unknown defendants); dynamic (mirror sites); dynamic-plus (future works) |
| Appeal | To the division bench or commercial appellate division; deference to the trial judge |
The test
The applicant must show a prima facie case — not that it will win, but that there is a serious question and the material favours it; that the balance of convenience lies with restraining the defendant rather than leaving it free to trade; and that the harm is irreparable, meaning damages at the end would not put it right. In infringement cases the three usually collapse into the first: the Supreme Court has said that where trademark or copyright infringement is made out prima facie, an injunction should normally follow, and that mere delay in bringing the action does not defeat it.
For a registered trademark or a granted patent, the registration itself supports the prima facie case; the defendant’s answer is to attack validity, and the strength of that attack is what the court weighs. For passing off, the plaintiff must show reputation, misrepresentation and likely damage on the evidence, which is more work. For patents, courts examine whether the patent is old and tested or new and untested, and whether the defendant has a credible invalidity case; an untested patent facing a serious challenge may not get interim relief.
Ex parte orders
Where notice to the defendant would defeat the object — the goods would vanish, the website would move, the evidence would be destroyed — the court can grant the injunction without hearing the defendant. The procedural rules require it to record its reasons for doing so, and require the plaintiff to serve the defendant immediately with the order, the application, the plaint and the documents. The defendant can then apply to have the order vacated, and the court must hear that application promptly; an ex parte order that goes unheard for months is itself a ground of complaint.
Ex parte relief is routine in counterfeiting, piracy and clear-copy cases, and rare in genuine commercial disputes between established businesses. The plaintiff’s candour is a condition: material facts concealed at the ex parte stage — a prior letter from the defendant, a pending rectification, the plaintiff’s own delay — lead to the order being vacated with costs regardless of the merits.
A defendant who expects to be sued can file a caveat in the likely court, which entitles it to notice before any order is made. Caveats are cheap, last ninety days, and are standard practice for a party that has received a warning letter.
Orders that travel with the injunction
Local commissioner. The court appoints an advocate as commissioner to visit the defendant’s premises — usually the same day, without notice — to inventory, photograph and seize infringing goods, records and equipment, and to report. This is India’s version of the Anton Piller order, and it is granted alongside an ex parte injunction where evidence would otherwise disappear. The commissioner’s report is the plaintiff’s evidence of the scale of the infringement.
Orders to intermediaries. Directions to marketplaces to delist products, to domain registrars to lock or suspend domains, to hosting providers and internet service providers to block sites, and to payment providers or banks to freeze accounts, are made in the same order where the facts justify them.
Disclosure. Directions to the defendant to disclose suppliers, customers, quantities and accounts.
Delay and acquiescence
Mere delay is not a defence to an infringement injunction. But acquiescence — years of knowing inaction while the defendant built a business in the open, or conduct that encouraged it — can persuade a court that the balance of convenience favours leaving things as they are until trial. The longer the plaintiff has known, the more it needs to explain, and the less likely ex parte relief becomes. A plaintiff that has just discovered a long-standing infringer should say so with evidence of when and how.
Vacating and appealing
The defendant applies to vacate; the court hears both sides and confirms, modifies or vacates the order. Either side can appeal to a division bench of the High Court or the commercial appellate division, within the time allowed. Appellate courts apply a deferential standard: the trial judge’s discretion is disturbed only where it was exercised arbitrarily, capriciously or on a wrong principle, not merely because the appellate court would have decided differently.
John Doe orders
Where infringers are unidentified or too numerous to name — street vendors of counterfeits, the operators of pirate streams, whoever registers the next lookalike domain — the court grants an injunction against unknown persons, called in India an “Ashok Kumar” order after the placeholder name used in the first cases. The order can be served on anyone found doing the restrained act, and the commissioner or the police can act against them on the spot. The order must be specific about the act restrained and the right relied on; courts have become more careful about breadth, particularly where John Doe relief is sought outside classic piracy and counterfeiting.
Dynamic and dynamic-plus injunctions
Against rogue websites — sites whose primary purpose is infringement, typically of films, sport and music — the Delhi High Court developed the dynamic injunction: an order blocking the named sites and permitting the plaintiff to add mirror, redirect and alphanumeric variants as they appear, by application to the registry rather than a fresh suit, with the court verifying the additions. Internet service providers and the government’s blocking mechanism are directed to give effect to it.
The dynamic-plus injunction goes further, extending the block to the plaintiff’s future works — the next season, the next film — so that content is protected from the moment it is released, without a new order each time. The court has kept judicial verification in the process rather than leaving platforms or plaintiffs to decide what is blocked. These orders are now the standard tool for broadcasters, studios and streaming services in India, and they have been extended to live sport, to gaming and to trademark cases against networks of lookalike sites.
Preparing for the interim hearing
The interim application is decided on affidavits and documents. What wins it: the registration certificates; dated evidence of the plaintiff’s use, sales and reputation; the infringing material, bought and documented; the comparison, side by side; evidence of when the plaintiff learned of the infringement and what it did; and a candid account of anything the defendant will raise. What loses it: a thin plaint filed in haste, undisclosed correspondence, and an inflated claim of urgency the record does not support.
Frequently asked questions
What does a court consider before granting an interim injunction in an IP case? A prima facie case, the balance of convenience and irreparable harm. Where trademark or copyright infringement is shown prima facie, an injunction normally follows, and delay alone does not defeat it.
Can I get an injunction without the defendant being heard? Yes, where notice would defeat the purpose — for example, where goods or evidence would disappear. The court must record reasons, the defendant must be served immediately, and the defendant can apply to vacate the order and must be heard promptly.
What is a local commissioner? An advocate appointed by the court to visit the defendant’s premises, usually without notice, to inventory and seize infringing goods and records and report to the court. It is the Indian equivalent of an Anton Piller order.
What is a John Doe or Ashok Kumar order? An injunction against unknown or unnamed persons, used where infringers are unidentified or too numerous to name — counterfeit sellers, pirate operators, future domain registrants. It can be enforced against anyone found doing the restrained act.
What is a dynamic injunction? An order blocking rogue websites that lets the plaintiff add mirror and redirect sites as they appear, on verification, without a fresh suit. A dynamic-plus injunction also covers the plaintiff’s future works from the moment they are released.
Does delay prevent an interim injunction? Not by itself in infringement cases. Long acquiescence, where the plaintiff knowingly let the defendant build a business, can tip the balance of convenience against interim relief and makes ex parte relief unlikely.
Useful official resources
- Delhi High Court — judgments — dynamic injunction and John Doe orders
- Department of Telecommunications — the blocking mechanism ISPs act under
See our related notes on intellectual property litigation in India, where to file an IP suit and evidence and investigation.
An infringement that needs stopping this week, or an ex parte order served on you? Talk to us.