Insights

FAQs on 'Use' of a Trademark in India

In India's common-law system, 'use' of a mark decides registration, opposition and enforcement. What counts as use, whether goods must physically exist here, and how trans-border reputation fits — answered.

Published 25 June 2020 · Updated 13 August 2026 · Reviewed by Selvam & Selvam

Trademarks

In India, “use” of a mark is often decisive — it shapes registration, wins oppositions, and grounds enforcement. Because this is a common-law system, the prior user can hold rights even against a later registrant. Here are the questions clients ask most.

What is “use” of a trademark in India?

The common assumption is that use means the mark on physically present goods. That is one form — but not the only one. Through judicial precedent, “use” has been read widely and is accepted as such by the Trade Marks Office: advertising, media presence and online use can all count.

Is it necessary to claim “use,” and how important is it?

Very. Because common law supersedes codified law here, use is pivotal to claiming rights:

  • A prior user assumes ownership over a later registrant — subject to proving that earlier use (which is why registration is still advisable).
  • Claiming use helps overcome citations in the examination report: a prior user can defeat a similar-mark objection.
  • In opposition, well-evidenced prior use naturally favours the prior user.

What is a User Affidavit (Affidavit of Use)?

When you file claiming use, the Act makes it mandatory to file a User Affidavit — a written oath that the date of first use claimed is true — supported by documentary evidence of use from that date.

What documents support a User Affidavit?

Evidence can include (not exhaustively):

  1. Invoices, bills and vouchers for Indian business activity.
  2. Contracts or agreements with Indian entities.
  3. Sales figures to Indian customers.
  4. Sign-ups by Indian customers.
  5. Advertising and promotional materials in India.
  6. Indian media coverage of the mark.
  7. Web analytics showing Indian traffic or customers.
  8. Any document showing the mark’s dissemination in India.

Every document should show the exact representation of the mark and a date, and ideally demonstrate continuous use — showing the mark is used continually matters as much as showing use at all.

Must the goods physically exist in India to claim use?

No. In the easyJet case, the mark appeared in leading Indian publications (The Times of India, The Hindu, Hindustan Times) and international titles freely available here, and was studied in management reports. The court held that physical presence of the goods/services is not required to claim use of a trademark in India.

What if there is no use in India but global fame?

India has protected marks with trans-border reputation — an exception to the prior-use rule, established in N.R. Dongre v. Whirlpool, where “WHIRLPOOL” was protected on the strength of reputation despite no notable Indian sales. But note the counter-current: Toyota v. Prius Auto Industries had the Supreme Court emphasise the need for actual reputation within India when trans-border reputation is claimed — so global fame alone is no longer a guaranteed shortcut.

If filed “proposed to be used,” must use be shown later?

Unlike the US, Indian law does not require you to prove use after a proposed-to-be-used filing. There is no hard rule. But if you do begin using the mark, filing a user affidavit is advisable — it evidences bona fide intent and can help overcome objections, oppositions and non-use attacks. Remember a registration is open to cancellation if unused for five years. (See our note on proposed-to-be-used vs claiming use.)

Useful official resources