India is first-to-file. That is the headline that every founder hears once and then misremembers. The full version is: India is first-to-file but Section 34 of the Trade Marks Act, 1999 protects honest prior users against later registrants. The interaction between those two rules decides nearly every Indian trademark dispute that does not settle.
The default rule
Section 28 of the Trade Marks Act, 1999 gives the registered proprietor an exclusive right to use the mark in relation to the goods or services for which it is registered. The right is statutory, the protection is national, and the first to file in a class typically owns the right against later applicants.
This is the rule that produces most copycat horror stories: a founder uses a brand for 18 months, never files, a competitor files in the same class, and the competitor walks away with the registered right. The founder is then in defence, not offence.
The market knows your brand. The register knows the other person’s.
Section 34 — the prior-user shield
Section 34 carves out an important exception. A registered proprietor cannot interfere with the use of an identical or similar trademark by an honest prior user who was using the mark before the date the registered proprietor first used or first applied for it (whichever is earlier).
In practice this means: if you can prove you were using the brand honestly in commerce before the other party filed, you can continue using it within the geographic scope you established. You do not gain registration; you gain a defence against the registered proprietor’s infringement action.
The catch — ‘use’ needs evidence
The Section 34 defence is only as good as the prior-use evidence. Courts have repeatedly held that ‘use’ means use in commerce, on the goods or services in question, with sufficient continuity. Examples of evidence that holds up:
- Dated invoices showing the mark on goods sold
- Government filings (GST returns, ROC documents) referencing the brand
- Dated advertisements with bills
- Domain registration records (WHOIS captures) and dated website screenshots
- Bank statements showing brand-named accounts or POS receipts
Examples that often fail: social media screenshots without dates, internal documents without third-party verification, statements of intention without commercial sales.
The Whirlpool case — trans-border reputation as another exception
N.R. Dongre v. Whirlpool (1996) established that a mark with trans-border reputation in India — even without local registration or local sales — can be protected. Whirlpool had no registration in India when an Indian company filed the mark, but its global reputation (visible through Indian media and trade) was enough for the Delhi High Court and then the Supreme Court to grant injunctive relief.
This is the second carve-out to first-to-file: a foreign mark with established Indian reputation can defeat a local first-filer. Trans-border reputation is fact-intensive and not lightly given; for most domestic disputes, Section 34 prior use is the practical defence.
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Most Indian trademark disputes are between two parties with comparable evidence — both started recently, both have light commercial use, neither has trans-border reputation. In those matters, the registered party wins on the strength of Section 28, and the unregistered party either negotiates or rebrands.
The cases where first-to-use overrides first-to-file are the outliers: long-established Indian brands with deep evidentiary records, or foreign brands with documented Indian reputation. Most founders are in neither category — and most can settle the question by filing on day one.
The takeaway
India is first-to-file, with two real carve-outs: Section 34 prior use and trans-border reputation. The carve-outs work only when the underlying evidence holds up. The cheapest, fastest and most reliable protection is the registration filing — done before the brand starts to scale and certainly before any third party becomes aware enough to file ahead of you. File the trademark and the question of which rule applies never has to be tested.
Your brand is only yours when you file it.
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