The call always sounds the same. Someone has been trading under a name for six or seven years, has built real recognition around it, and has just received a cease-and-desist from a company that registered the same mark two years ago. They want to know how this is possible when they were first.
Use versus registration
Indian law does protect the prior user. A registered proprietor cannot stop someone who was genuinely using the mark earlier, and in a passing-off action the earlier user often wins. That is the good news, and it is where most of the reassurance you will read online stops.
The problem is what winning costs. As an unregistered prior user, you have to prove continuous use from a date earlier than theirs, across the same goods or services, with evidence a court will accept. That means dated invoices, advertisements, packaging, filings — a documentary trail going back years, produced in litigation, at your expense. The registered owner has to produce one certificate.
What registration actually gets you
- A statutory right you can enforce anywhere in India, not just where you can prove reputation.
- The presumption of validity — the burden shifts to whoever is challenging you.
- The ability to send a credible notice that ends most disputes without litigation.
- Grounds to have infringing listings removed by marketplaces and platforms, which usually act on a registration and ignore a claim of prior use.
- An asset you can license, assign or value, which matters in any fundraise or sale.
- Customs recordal, to stop counterfeit imports at the border.
When to file
Before you spend on the brand, not after. The right moment is when you have settled on the name and before you print packaging, buy the domain traffic or start advertising — because that is the point at which changing it stops being free.
You can file on a proposed-to-be-used basis before you have traded at all. There is no requirement to be in business first, and the filing date is what fixes your priority.
The class question, which people get wrong
A trademark is registered for specified goods or services, grouped into classes. Registering your name in the class for clothing gives you nothing if a competitor uses it for software. Businesses routinely file in one class to save the fee and discover the gap when it matters.
File in the classes covering what you sell today and what you can realistically see yourself selling. Each additional class costs a separate government fee, so this is a commercial judgement — but it is one worth making deliberately rather than by default.
Search first, always
A public search before filing tells you whether something similar is already registered or pending. It is not a guarantee against objection, because the Registrar applies judgement about similarity, but it will catch the obvious collisions before you have committed money to the name.
If the search turns up a conflict, that is a good outcome. Finding it now costs you a different name. Finding it in year four costs you the brand.