Counterfeit products can cause serious commercial and reputational harm to businesses. They may copy a registered brand name, logo, packaging, label or other distinctive features and create the impression of being genuine goods. Counterfeit Trademark Infringement becomes particularly serious when fake products enter online marketplaces, retail channels or international supply chains. Indian law provides brand owners with civil and criminal remedies, along with measures for preserving evidence, stopping sales and addressing counterfeit goods at the border. Understanding these remedies can help businesses respond quickly and protect their brand value.
What Is Counterfeit Trademark Infringement?
Counterfeit trademark infringement generally involves the unauthorised use of a trademark, or a deceptively similar mark, on goods or packaging in a manner which falsely suggests a connection with the genuine brand. Counterfeit goods are usually made or sold without the permission of the trademark owner and are intended to benefit from the reputation and consumer recognition associated with the genuine mark.
The Trade Marks Act, 1999 distinguishes several forms of unauthorised conduct involving false trademarks. Section 102 states when a person is deemed to falsify a trademark or falsely apply a trademark to goods or services. It also covers the unauthorised use of a mark or deceptively similar mark on goods or packaging.
Counterfeiting is therefore more than ordinary brand imitation. A counterfeit product may reproduce the trademark so closely that consumers believe it originated from the genuine manufacturer. The resulting harm can include lost sales, customer complaints, safety concerns and damage to goodwill.
How Counterfeit Products Harm Brand Owners
The financial impact of counterfeit goods can extend well beyond lost sales. Customers who unknowingly purchase fake products may associate poor quality with the genuine brand. This can be particularly damaging for products where safety, reliability or performance is important. Counterfeiters can also exploit online marketplaces, social media and independent websites to reach consumers quickly. A single seller may distribute products across several locations while changing online listings or seller accounts when enforcement action begins. Brand owners may also face difficulties identifying the source of counterfeit products. Manufacturing, storage, packaging and distribution may occur at different premises. Effective enforcement therefore often requires investigation and coordinated action rather than simply contacting an individual seller.
How Does Indian Trademark Law Protect Brand Owners?
Section 28 of the Trade Marks Act, 1999 gives the registered proprietor exclusive rights to use the registered trademark in relation to the goods or services covered by the registration, subject to the Act and any conditions or limitations. Section 29 sets out circumstances in which unauthorised use of an identical or deceptively similar mark constitutes infringement. Section 29 also specifically recognises several forms of use relevant to counterfeit goods. These include applying a mark to goods or packaging, offering goods for sale, putting goods on the market, stocking goods for sale and importing or exporting goods under the mark. This makes the provision particularly relevant where counterfeit products move through manufacturers, wholesalers, distributors, retailers or online sellers. An important distinction should also be made between trademark infringement and passing off. Section 27 generally prevents an infringement action for an unregistered trademark, while preserving the common law remedy of passing off. A business with an unregistered brand may therefore still have legal options if it can establish the required elements of a passing off claim.
Identifying Counterfeit Goods and Preserving Evidence
Early evidence collection can significantly influence the success of an enforcement action. Brand owners should establish how the suspected counterfeit product was discovered and preserve evidence before the seller has an opportunity to remove or alter it. Online evidence may include product listings, seller profiles, website pages, advertisements, social media posts, photographs, invoices and customer communications. Where appropriate, purchasing a suspected counterfeit product can help establish the nature of the goods, seller information and transaction details. Physical evidence can include the product itself, packaging, labels, tags, invoices and other materials carrying the disputed mark. Genuine and counterfeit samples can also be compared to identify differences in printing, packaging, serial numbers, labels or product quality. The trademark registration certificate should also be kept readily available. Evidence of genuine commercial use and the reputation associated with the mark can become important when seeking urgent relief. The quality of evidence matters because an allegation of counterfeiting should be supported by facts. A mere similarity between two products does not automatically establish infringement or counterfeiting.
Sending a Legal Notice to the Counterfeiter
A legal notice can be an appropriate first step when the infringer is identifiable and immediate court intervention is not essential. The notice can identify the registered trademark, explain the allegedly unlawful conduct and demand discontinuation of the infringing activity. A carefully drafted notice may require the recipient to stop manufacturing and selling the counterfeit goods, remove online listings, withdraw advertising material, disclose relevant information and provide undertakings against future infringement. The response can also open the possibility of a negotiated settlement. In some cases, the infringer may agree to stop using the trademark and surrender remaining stock without prolonged litigation. However, a notice is not always the best first step. If there is a genuine risk the counterfeit goods will be removed, concealed or destroyed, delaying court action could make evidence preservation more difficult.
Filing a Civil Trademark Infringement Case
When counterfeit activity is substantial or continues despite notice, a brand owner may consider civil proceedings. Section 134 of the Trade Marks Act provides for suits concerning infringement of registered trademarks and passing off to be instituted before a District Court having jurisdiction. Section 135 provides several important remedies. These include injunctions, damages or an account of profits and delivery up of infringing labels and marks for destruction or erasure. The court may also grant interlocutory relief concerning discovery and preservation of infringing goods, documents or other evidence. An injunction is often central to counterfeit litigation because it can prevent continued manufacture, sale, distribution and advertising of the disputed goods. A Trademark infringement lawsuit may therefore seek more than financial compensation. It can be structured to stop the commercial activity, preserve evidence and remove counterfeit material from the marketplace.
Ex Parte Injunctions and Local Commissioners
Counterfeit cases can involve an immediate risk of evidence disappearing. In suitable circumstances, courts may grant an ex parte interim injunction and appoint a Local Commissioner to inspect premises and seize or preserve infringing material. Recent Delhi High Court orders demonstrate the practical importance of this remedy. In a 2025 matter involving alleged counterfeit products, the Court considered an application for urgent interim relief and appointment of a Local Commissioner to seize the goods. The Court recognised the concern that advance notice could result in the goods being removed before the commission was executed. Similarly, in Hero Investcorp Private Limited v. Ashok Kumar, the Delhi High Court considered an application involving counterfeit products bearing the plaintiff’s trademarks and permitted exemption from advance service in the circumstances presented. The matter also involved a request for appointment of a Local Commissioner for seizure. More recent orders show courts directing Local Commissioners to inspect premises and seize counterfeit products, packaging and materials used in their preparation where the circumstances justify such intervention. Such orders are not automatic. The claimant must present sufficient material for the court to assess the alleged infringement and the need for urgent intervention.
Criminal Remedies Against Counterfeiters
Counterfeiting can also attract criminal consequences under the Trade Marks Act. Section 103 addresses falsifying a trademark, falsely applying a trademark and certain related activities. The prescribed punishment can include imprisonment of not less than six months and up to three years, along with a fine ranging from ₹50,000 to ₹2 lakh, subject to the statutory provisions and exceptions. Section 104 addresses the sale, possession or offering for sale of goods bearing a false trademark or false trade description in circumstances covered by the provision. The prescribed punishment similarly includes imprisonment and a fine, subject to statutory conditions and defences. Section 105 provides enhanced penalties for second and subsequent convictions under Sections 103 and 104. The Act also states that offences under Sections 103, 104 and 105 are cognisable. Section 115 addresses cognisance and the powers of police officers concerning search and seizure, subject to the statutory requirements. Criminal action should be considered carefully. The evidence should establish more than a general suspicion of counterfeit activity. Brand owners should coordinate their civil and criminal enforcement strategy where both remedies are relevant.
Stopping Counterfeit Goods at the Indian Border
Counterfeit products may enter India through international supply chains. Customs enforcement can therefore form an important part of a brand protection strategy. The Trade Marks Act allows the proprietor or licensee of a registered trademark to give written notice to the Customs authorities to prohibit the importation of specified goods where the import constitutes infringement in circumstances covered by the Act. Section 140 also provides for information concerning imported goods bearing false trademarks in specified circumstances. The Government’s Intellectual Property Rights enforcement framework provides a procedure for registered rights holders to record relevant notices with Customs. The CBIC explains that the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 provide procedures for registration of notices and suspension of release of suspected infringing imported goods. This border measure can be particularly useful for brands dealing with recurring imports of counterfeit products. Businesses should ensure their trademark records and supporting information are accurate and current before relying on Customs enforcement.
Online Counterfeit Products and Marketplace Enforcement
Online marketplaces have made counterfeit distribution more accessible. Sellers can use product listings, sponsored advertising and social media to reach customers without maintaining a conventional retail presence. Brand owners should preserve online evidence before requesting removal. Screenshots should ideally capture the seller name, product title, images, description, price, marketplace identity and relevant URL. Most major platforms have intellectual property complaint mechanisms. Platform takedown procedures can be useful for removing individual listings, but they may not stop the seller from moving to another account or marketplace. Where counterfeit activity is widespread, platform complaints should form part of a broader enforcement strategy. Legal proceedings may be necessary where the business needs an injunction, disclosure of information, seizure of goods or financial relief.
What Remedies Can a Brand Owner Seek?
The appropriate remedy depends on the circumstances of the case. Civil proceedings can seek injunctions, damages or an account of profits and delivery up of infringing labels and marks. A court may also grant interim measures aimed at preserving evidence. In appropriate cases, this can include inspection and seizure through a Local Commissioner. Criminal proceedings may be relevant where the conduct falls within the offences concerning false trademarks and false trade descriptions. Customs enforcement can help address counterfeit goods before they enter the domestic market. These remedies can sometimes operate alongside one another. A business should consider the overall objective before deciding which route to pursue.
Defences Available to Alleged Infringers
An allegation of counterfeiting does not automatically establish liability. A defendant may dispute the validity or scope of the trademark, challenge the alleged similarity or argue the goods are genuine. Section 30 of the Trade Marks Act also contains limitations on the effect of registered trademark rights in specified circumstances. Other provisions preserve certain earlier rights and bona fide uses. A seller may also argue that it had no reason to suspect the goods were not genuine. Section 104 expressly provides certain statutory defences for persons accused of selling goods bearing false trademarks, including circumstances involving reasonable precautions and lack of knowledge. For this reason, businesses should investigate the supply chain and available evidence before making a final allegation.
How Businesses Can Prevent Counterfeiting
Trademark protection should begin before counterfeit goods appear in the market. Businesses should register important brand names, logos and other protectable marks in the relevant classes. They should also maintain accurate records concerning ownership, licensing and authorised distributors. Regular marketplace and retail monitoring can help identify suspicious products early. Businesses should also educate authorised distributors and internal teams on how genuine products can be distinguished from suspected counterfeits. Product authentication measures can provide another layer of protection. Serial numbers, QR based verification, security labels and controlled distribution channels may make counterfeiting more difficult, depending on the product and industry. Online monitoring should cover marketplaces, social media, websites and domain names. When suspicious activity is identified, evidence should be preserved before the seller changes the listing. For businesses facing persistent counterfeiting, a trademark infringement law firm in India can help develop an enforcement strategy combining civil remedies, criminal measures, marketplace action and border protection where appropriate.
Conclusion
Counterfeit products can undermine a brand’s revenue, reputation and relationship with customers. The problem can become particularly difficult when counterfeiters operate through multiple sellers, online marketplaces, social media channels or international supply chains. Indian law provides brand owners with several avenues for protection. Civil proceedings can seek injunctions, damages, an account of profits and delivery up of infringing material. Criminal provisions address specified forms of falsification and sale of goods bearing false trademarks. Customs mechanisms can also assist with suspected infringing imports. The most effective response is usually evidence driven. Businesses should identify counterfeit activity early, preserve reliable evidence and choose remedies proportionate to the scale and urgency of the infringement. Where counterfeit products pose an immediate threat, timely legal intervention can help prevent further distribution and preserve evidence before it disappears.
Frequently Asked Questions (FAQs)
What is Counterfeit Trademark Infringement?
Counterfeit Trademark Infringement involves unauthorised use of a trademark or deceptively similar mark on goods, packaging or related commercial material in circumstances covered by trademark law. Counterfeit products are generally presented as genuine or associated with the legitimate brand.
What should a brand owner do after discovering counterfeit products?
The brand owner should preserve evidence, verify the relevant trademark rights, identify the source of the counterfeit goods and assess the appropriate enforcement route. Depending on the circumstances, the response may include a legal notice, platform complaint, civil action, criminal complaint or Customs intervention.
Can I file a case against a seller of counterfeit products?
Potentially, yes. The available action depends on the evidence and circumstances. The Trade Marks Act provides civil remedies for infringement and passing off and criminal provisions concerning certain forms of false trademark use and sale of goods bearing false trademarks.
Can the police seize counterfeit products?
The Trade Marks Act contains provisions concerning cognisable offences and police powers relating to search and seizure, subject to the statutory requirements. In appropriate civil proceedings, courts may also appoint Local Commissioners to inspect and seize suspected counterfeit products.
Can a brand owner obtain an injunction against counterfeit goods?
Yes. Section 135 of the Trade Marks Act expressly provides injunction as a civil remedy in appropriate infringement and passing off cases. Courts can also consider interim relief where urgent protection is justified.
