Criminal Remedy for Trademark Infringement 2026: Section 103 & 104 Explained

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Introduction

Trademark infringement is not merely a civil wrong in India — it is a criminal offence. While most brand owners instinctively think of injunctions and damages when their mark is copied, the Trade Marks Act, 1999 offers a powerful parallel route: criminal remedy for trademark infringement under Sections 103 and 104. This route can result in raids, arrests, seizure of counterfeit goods, and imprisonment of infringers — outcomes that civil courts simply cannot deliver at the same speed or force.

In 2026, with counterfeiting networks growing increasingly sophisticated — spanning physical markets, e-commerce platforms, and cross-border supply chains — understanding the criminal enforcement mechanism has never been more important for brand owners, businesses, startups, and legal professionals alike.

This guide breaks down Sections 103 and 104 of the Trade Marks Act, 1999 in plain language, walks you through the entire enforcement procedure from filing a complaint to conducting a raid, explains the penalties involved, and tells you how to use both civil and criminal routes simultaneously for maximum protection.

What Is Trademark Infringement Under Indian Law?

Before understanding the criminal remedy for trademark infringement, it is essential to understand what constitutes infringement in the first place.

Section 29 of the Trade Marks Act, 1999 defines trademark infringement as the unauthorised use of a registered trademark — or a mark deceptively similar to it — by a person who is neither the registered proprietor nor a licensed user. Infringement occurs when:

• An identical or deceptively similar mark is used for the same or similar goods or services, creating a likelihood of public confusion.
• An identical or similar mark is used for different goods or services but takes unfair advantage of or is detrimental to the distinctive character or reputation of the registered mark.
• A registered trademark is used as a trade name or as part of a business name dealing in goods or services for which the trademark is registered.
• Any advertising of a trademark takes unfair advantage of its reputation or is contrary to honest trade practices.

A critical point: only registered trademarks can be protected through civil infringement suits. For unregistered marks, the remedy is the common law action of passing off under Section 27. However, criminal prosecution under Sections 103 and 104 applies to both registered and unregistered marks, since these sections deal with the falsification of trademarks generally.

If your trademark is not yet registered, the criminal route becomes even more important — and registration becomes urgent. Professional assistance for online trademark registration is available through services like OnlineTrademark India, which guides businesses through the complete registration process under the Trade Marks Act, 1999.

Civil vs. Criminal Remedy for Trademark Infringement: The Key Difference

Indian trademark law provides both civil remedies and criminal remedies for infringement. These are not mutually exclusive — both can be pursued simultaneously.

The availability of criminal remedies gives trademark owners enormous settlement leverage — the prospect of a criminal prosecution, a raid, and arrest tends to bring infringers to the negotiating table far faster than a civil suit.

Section 102: Defining “Falsifying” and “Falsely Applying” a Trademark

Before diving into Sections 103 and 104, it is important to understand Section 102, which defines the key terms used in the criminal provisions.

Under Section 102(1), a person “falsifies” a trademark if they:

• Without the assent of the proprietor, make a trademark or a deceptively similar mark.
• Falsify any genuine trademark, whether by alteration, addition, effacement, or otherwise.

Under Section 102(2), a person “falsely applies” a trademark if they:

• Without the assent of the proprietor, apply such a trademark or a deceptively similar mark to any goods or services.

A critical procedural safeguard under Section 102(4) provides that in any prosecution under this part of the Act, the burden of proving that the proprietor consented to the use of the mark lies on the accused, not on the prosecution. This reversal of the usual burden of proof makes it significantly easier for trademark owners to pursue criminal action — the infringer must prove consent, not the other way around.

Section 103: Criminal Penalty for Applying False Trademarks

Section 103 of the Trade Marks Act, 1999 is the primary penal provision targeting those who actively create or apply counterfeit marks. It is titled “Penalty for applying false trade marks, trade descriptions, etc.”

What Actions Does Section 103 Cover?

Any person who does any of the following is guilty of an offence under Section 103:

1. Falsifies any trademark — making a counterfeit mark without the proprietor’s consent.
2. Falsely applies any trademark to goods or services.
3. Makes, disposes of, or possesses any die, block, machine, plate, or other instrument for the purpose of falsifying a trademark.
4. Applies any false trade description to goods or services.
5. Applies to goods any indication of the country or place in which they were made, or of the name and address of the manufacturer, which is false.
6. Tampers with, alters, or defaces any indication of origin which is required to be applied to goods under Section 139 of the Act.

In the landmark case of Cadbury India Ltd. v. Neeraj Food Products (2001), the court held that the use of a deceptively similar trademark with the intention of misleading consumers is a cognisable offence under Section 103. The accused was penalised and the registered trademark owner’s rights were protected.

Penalty Under Section 103

The punishment for a first-time conviction under Section 103 is:

• Imprisonment for a term not less than six months, which may extend to three years
• Fine of not less than Rs. 50,000 (fifty thousand rupees), which may extend to Rs. 2,00,000 (two lakh rupees)
• Or both imprisonment and fine

The minimum punishment — six months and Rs. 50,000 — is not a mere technicality. Courts apply it strictly, and there is no provision for a simple fine in lieu of imprisonment for serious first offenders.

Section 104: Criminal Penalty for Selling Goods with a False Trademark

While Section 103 targets the creators of counterfeit marks, Section 104 casts a wider net by also criminalising the sellers, distributors, and service providers who deal in goods or services to which a false trademark has been applied.

Section 104 is titled “Penalty for selling goods or providing services to which false trade mark or false trade description is applied.”

What Actions Does Section 104 Cover?

Any person is guilty of an offence under Section 104 if they:

1. Sell, expose for sale, or have in their possession for sale any goods to which a false trademark or false trade description is applied.
2. Provide or offer to provide any service in connection with which a false trademark or false trade description is used.
3. Export or import goods to which a false trademark is applied.

The “Knowledge” Defence Under Section 104

Section 104 contains an important defence: a person is not guilty if they prove that:

• They had acted in good faith without knowing that the trademark was false.
• They had taken all reasonable precautions against committing such an offence.
• They had no reason to suspect that the goods were carrying a false trademark.
• They were willing to give all information in their power about the persons from whom they obtained such goods.

This means that a retailer who genuinely did not know they were selling counterfeit goods has a defence — but the burden of proving good faith lies on them. In practice, large-scale retailers and distributors who deal in counterfeit goods in bulk will find this defence difficult to sustain.

Penalty Under Section 104

The punishment under Section 104 mirrors Section 103:

• Imprisonment for a term not less than six months, which may extend to three years
• Fine of not less than Rs. 50,000, which may extend to Rs. 2,00,000
• Or both

Section 105: Enhanced Penalty for Repeat Offenders

Section 105 of the Trade Marks Act provides for significantly enhanced penalties for second and subsequent convictions under Sections 103 or 104:

• Imprisonment for a term not less than one year, which may extend to three years
• Fine of not less than Rs. 1,00,000 (one lakh rupees), which may extend to Rs. 2,00,000

This provision signals the legislature’s firm intent to treat repeat trademark offenders as habitual criminals deserving escalating punishment.

Other Related Penal Provisions: Sections 107 to 109

Beyond Sections 103 and 104, the Trade Marks Act provides additional penal provisions:

• Section 107: Penalty for falsely representing a trademark as registered. A person who represents an unregistered trademark as registered can face imprisonment of up to three years, a fine, or both.
• Section 108: Penalty for improperly describing a place of business as connected with the Trade Marks Office.
• Section 109: Penalty for falsification of entries in the trademark register.

These are non-cognizable offences — meaning the police cannot register an FIR on their own; the Magistrate must take cognizance only on a written complaint by the Registrar of Trade Marks.

Are Trademark Offences Cognisable?

This is one of the most debated procedural questions in Indian trademark law.

The Trade Marks Act, 1999 itself does not explicitly classify offences under Sections 103 and 104 as cognizable or non-cognizable. However, the First Schedule, Table II of the Code of Criminal Procedure, 1973 (now replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 — BNSS) provides that any offence punishable with imprisonment for three years or more is a cognizable and non-bailable offence triable by a Magistrate of First Class.

Since Section 103 and 104 offences carry a maximum sentence of three years, they are treated as cognizable — meaning police can register an FIR and investigate without first obtaining a court order.

This is significant: it means brand owners can approach the police directly for an FIR and investigation without having to go to a Magistrate first — although the Magistrate route is also available and is often more practical.

Section 115: The Police Search and Seizure Power

Section 115 of the Trade Marks Act, 1999 is the procedural engine that drives criminal enforcement on the ground. It provides the police with the power to search and seize without a warrant.

Key Requirements Under Section 115(4)

A police officer not below the rank of Deputy Superintendent of Police (DSP) or equivalent (Assistant Commissioner of Police in metropolitan areas) may, if satisfied that an offence under Sections 103 or 104 has been, is being, or is likely to be committed:

• Search and seize without a warrant the infringing goods, dies, blocks, machines, plates, and other instruments involved in the offence, wherever found.
• Produce all seized articles before a Judicial Magistrate of First Class or Metropolitan Magistrate as soon as practicable.

However, there is a crucial procedural requirement: before executing the search and seizure, the police officer must obtain the opinion of the Registrar of Trade Marks on the facts of the case and is bound to act in accordance with that opinion.

Why the Registrar’s Opinion Matters

This opinion requirement is a safeguard against harassment of legitimate businesses. Courts in India have strictly enforced this requirement. In one High Court ruling, the Madras High Court refused to prosecute accused persons where the mandatory opinion of the Registrar had not been obtained prior to the search — holding that proceeding without it would be a misuse of the legal process.

The Alternative Route: Magistrate Court Under BNSS

A practical challenge with the Section 115 route is that DSPs are senior officers not typically stationed at local police stations, which slows the process. Brand owners have therefore also used the Magistrate route under the BNSS (previously CrPC) — filing a complaint before a Judicial Magistrate under Section 200 and requesting:

• An investigation under Section 202 of the BNSS.
• A search warrant under Section 93 of the BNSS (corresponding to CrPC provisions).

Importantly, the Delhi High Court in Sanyo Electric Co. v. State of Delhi held that a search warrant issued by a court can be executed without the Registrar’s opinion requirement under Section 115(4) — providing a faster alternative route for brand owners who need to act urgently.

Step-by-Step: How to File a Criminal Complaint for Trademark Infringement

Here is the practical step-by-step process for pursuing the criminal remedy for trademark infringement in India in 2026:

Step 1: Gather Evidence of Infringement

Before filing any complaint, collect solid evidence:

• Test purchases: Buy the infringing goods from the infringer’s outlet or online store.
• Photographs and videos of infringing goods, packaging, and the infringer’s premises.
• Market survey reports if the scale of infringement is large.
• Your trademark registration certificate (proof of ownership).
• Any prior correspondence, warnings, or cease-and-desist letters sent to the infringer.

Step 2: Engage a Trademark Lawyer

Criminal trademark enforcement is highly technical. Engage a lawyer who specialises in intellectual property law. Services like LegalTax.in provide expert legal guidance for trademark-related matters, including drafting complaints, handling trademark registrations, and managing IP disputes end-to-end.

Step 3: Draft and File the Criminal Complaint

The complaint can be filed:

Route A — Before the Police (DSP Level): File a written complaint with the Deputy Superintendent of Police. The DSP will then obtain the Registrar’s opinion before conducting a raid. This route works well when the infringer’s identity and premises are known.

Route B — Before the Magistrate (Preferred in Many Cases): File a complaint under Section 200 of the BNSS before the Judicial Magistrate First Class or Metropolitan Magistrate. The Magistrate can:

• Issue a search warrant under Section 93 of BNSS.
• Direct the police to investigate under Section 156(3).
• Order an inquiry under Section 202.

This route is often faster and gives brand owners greater judicial oversight of the process.

Route C — FIR at Police Station: File an FIR at the local police station. The SHO will forward it to the DSP, who is the empowered officer under Section 115. This route can be slower due to the transfer of jurisdiction but is procedurally straightforward.

Step 4: Police Raid and Seizure

Once the complaint is accepted and the Registrar’s opinion (or Magistrate’s order) is obtained, the raiding team — comprising the DSP, brand experts, and independent witnesses (Panchas) — enters the infringer’s premises. They:

• Seize counterfeit goods, packaging, moulds, dies, and printing equipment.
• Prepare an inventory of seized items.
• Arrest the accused if warranted.
• Produce the accused and seized goods before the Magistrate.

Step 5: Magistrate Proceedings and Trial

After the raid and arrest, the matter proceeds before the Magistrate. The complainant (trademark owner) must:

• File a formal complaint or charge sheet supporting the prosecution.
• Produce the Registrar’s opinion as evidence of infringement.
• Attend hearings as a complainant/witness.

Conviction leads to imprisonment and fines under Sections 103 and 104, and forfeiture and destruction of infringing goods under Section 111 of the Trade Marks Act.

Parallel Civil and Criminal Action: Can You Do Both?

Yes — and this is strongly recommended for maximum protection.

A trademark owner is not required to choose between civil and criminal routes. Both can proceed simultaneously before different forums:

• Civil action before the District Court or High Court for injunctions, damages, account of profits, and destruction of infringing goods under Sections 134 and 135.
• Criminal action before the Magistrate under Sections 103 and 104 for imprisonment, fines, and forfeiture.

Running both proceedings simultaneously gives the trademark owner:

• Immediate relief from civil courts through ex-parte injunctions (granted within days in urgent cases).
• Punitive consequences through criminal prosecution that deters future infringement.
• Strong settlement leverage — most infringers settle quickly when facing both a civil suit and a criminal complaint.

In the 2025 case of Puma SE v. Himanshu Sharma, the Delhi High Court awarded Rs. 2,10,000 in damages and Rs. 5,90,000 in legal costs against an online retailer selling counterfeit Puma shoes — demonstrating that courts are increasingly willing to impose substantial financial consequences for infringement, especially for well-known marks.

Trademark Infringement and Company Directors: Extended Liability

If the infringing entity is a company or firm, Section 114 of the Trade Marks Act extends criminal liability to the company and to every person who was in charge of and responsible for the conduct of the business at the time of the offence — including directors, partners, and key managerial personnel.

This means that directors and partners cannot shield themselves behind the corporate entity. They can be personally prosecuted alongside the company, making criminal enforcement a powerful tool against organised counterfeiting networks.

Key Landmark Cases on Criminal Remedy for Trademark Infringement

1. Cadbury India Ltd. v. Neeraj Food Products (2001)

The court held that using a deceptively similar trademark with the intent to mislead consumers constitutes a cognizable offence under Section 103. This case firmly established criminal liability for trademark falsification in the food and consumer goods sector.

2. State v. Rajasthan (Petitioner — False Trademark Case)

As examined in the Rajasthan High Court, a charge sheet filed under Section 420 IPC (now BNS Section 318) read with Sections 103 and 104 of the Trade Marks Act was upheld. The court confirmed that the use of a false trademark with intent to deceive is a cognisable offence — reinforcing that multiple penal statutes can be combined in trademark infringement prosecutions.

3. Sanyo Electric Co. v. State of Delhi (CRL. REV. PETITION NO. 154/2010)

The Delhi High Court held that a search warrant issued by a Magistrate court under the CrPC (now BNSS) can be executed for trademark infringement without the prior Registrar’s opinion that Section 115(4) ordinarily requires — providing brand owners an important alternative pathway to fast-track raids.

4. Himalaya Global Holdings Ltd. v. Rajasthan Aushdhalaya Pvt. Ltd. (2025)

The Delhi High Court held that the defendant’s mark “Liv-333” was deceptively similar to Himalaya’s well-known mark “Liv.52”, granted a permanent injunction, and awarded damages of Rs. 20,00,000 with legal costs of Rs. 10,91,000 — demonstrating strong judicial protection for well-known brands in 2025.

Trademark Infringement and Online Counterfeiting in 2026

The rapid growth of e-commerce has created new dimensions of trademark infringement that go beyond physical markets. In 2026, counterfeit goods are sold through online marketplaces, social media shops, and private WhatsApp groups — making enforcement more complex.

Key developments for online trademark enforcement in 2026:

• Takedown Notices: Most major e-commerce platforms (Amazon, Flipkart, Meesho) have brand protection portals where trademark owners can report and remove infringing listings.
• Dynamic Injunctions: Indian courts — particularly the Delhi High Court — have granted dynamic injunctions in IP cases that cover not just identified infringing websites but also mirror and rogue websites that may appear in the future.
• Digital Evidence: Screenshots, purchase records, and digital transaction trails are now admissible and routinely used in trademark infringement cases.
• Cross-Border Enforcement: For goods imported from abroad bearing fake Indian trademarks, Customs Recordation (registration of trademarks with Indian customs authorities) allows border seizure of counterfeit imports before they enter the market.

How Trademark Registration Strengthens Criminal Enforcement

A registered trademark significantly strengthens your position in criminal proceedings because:

• Registration creates a legal presumption of ownership in your favour.
• The Registrar of Trade Marks can provide an expert opinion confirming infringement — a mandatory prerequisite for police raids under Section 115.
• The certificate of registration is direct, incontrovertible proof of your exclusive right in court.
• Well-known marks receive enhanced protection under Section 29(4), making it easier to prove infringement even for non-competing goods.

If your trademark is not yet registered, you are at a procedural disadvantage in criminal enforcement. The first step every business should take is to secure trademark registration. Expert services for this purpose are available at OnlineTrademark India, where qualified legal professionals guide applicants through the filing, examination, and registration process under Indian trademark law.

The Intersection with Family and Civil Law Disputes

While trademark infringement and family law may seem worlds apart, there are practical situations where they intersect — for example, in divorce proceedings involving jointly owned business assets that include registered trademarks, or in succession disputes where trademark ownership is contested among legal heirs or business partners separating after a matrimonial breakdown.

In such cases, it is important to simultaneously protect the trademark through criminal enforcement while also sorting out ownership rights through appropriate civil or family law proceedings. Legal resources like QuickDivorce.in offer expert guidance on resolving personal and business asset disputes in the context of family law, which can be a valuable parallel support for business owners navigating both types of legal challenges simultaneously.

Checklist: Before Filing a Criminal Complaint for Trademark Infringement

• [ ] Trademark registration certificate obtained and valid
• [ ] Clear evidence of infringement collected (test purchases, photos, market survey)
• [ ] Infringer’s identity and premises identified
• [ ] Trademark lawyer engaged
• [ ] Decision made on Route A (DSP/police), Route B (Magistrate), or Route C (FIR)
• [ ] Complaint drafted with all required details (trademark details, nature of infringement, identity of accused, evidence)
• [ ] Section 420 BNS (cheating) considered for inclusion alongside Section 103/104
• [ ] Parallel civil suit for injunction and damages considered
• [ ] Registrar of Trade Marks’ opinion anticipated as a key step
• [ ] Post-raid procedures planned (attending Magistrate, preserving evidence, supporting prosecution)

Frequently Asked Questions (FAQs)

1. Can I file a criminal complaint for trademark infringement without registration?

Technically, Sections 103 and 104 apply to falsification of any trademark, registered or not. However, a registration certificate enormously strengthens your case by providing undisputed proof of ownership and enabling the Registrar to issue an opinion. Without registration, criminal enforcement is significantly harder in practice.

2. What is the difference between Section 103 and Section 104?

Section 103 targets the maker or applicator of the false trademark — the counterfeiter who creates or stamps the fake mark on goods. Section 104 targets the seller or distributor — anyone who sells, offers for sale, or exports goods to which a false trademark has been applied. Both carry identical penalties.

3. Can a seller escape liability under Section 104 by claiming ignorance?

Yes, if the seller can prove good faith — that they had no knowledge the trademark was false, had taken precautions, and are willing to disclose their supplier. But this defence is difficult to sustain for large-scale distributors or those dealing in obvious counterfeits.

4. What is the role of the Registrar of Trade Marks in criminal proceedings?

The Registrar provides a written expert opinion on whether the mark in question is deceptively similar to a registered trademark. This opinion is a mandatory prerequisite for police raids under Section 115(4). Courts have quashed trademark prosecutions where this opinion was not obtained before the raid.

5. Can a company’s directors be personally prosecuted for trademark infringement?

Yes. Under Section 114 of the Trade Marks Act, every person in charge of and responsible for the conduct of the company’s business at the time of the offence is personally liable — in addition to the company itself.

6. How long does a criminal trademark case take in India?

Trial proceedings in Magistrate courts can take one to three years or more. However, the most impactful part of criminal enforcement — the raid, seizure, and arrest — can happen within days of a complaint being filed, giving immediate practical relief to brand owners even before the trial concludes.

7. Can I use Section 103 and Section 104 together with IPC/BNS provisions?

Yes. Many trademark infringement cases are filed under Sections 103 and 104 of the Trade Marks Act read with Section 420 of the IPC (now Section 318 of the Bharatiya Nyaya Sanhita, 2023) for cheating and fraud. Filing under both statutes maximises the penal exposure for the infringer.

8. What happens to the counterfeit goods seized in a raid?

Seized goods are produced before the Magistrate. After conviction, the court can order the forfeiture and destruction of infringing goods under Section 111 of the Trade Marks Act — ensuring the counterfeits do not re-enter the market.

Conclusion

The criminal remedy for trademark infringement under Sections 103 and 104 of the Trade Marks Act, 1999 is one of India’s most potent but underutilised tools for brand protection. It converts what might otherwise be a slow civil dispute into a swift enforcement action — with raids, arrests, seizures, and the very real prospect of imprisonment for infringers.

In 2026, as counterfeiting evolves across both physical and digital marketplaces, brand owners cannot rely on civil remedies alone. A strategic combination of criminal complaints under Sections 103 and 104, civil infringement suits, and customs recordation offers the strongest possible shield for your intellectual property.

The foundation of this protection is a registered trademark. Without registration, your ability to invoke these powerful criminal provisions is severely compromised. Start by registering your trademark through trusted experts at OnlineTrademark India, and for comprehensive legal services covering trademark enforcement, business compliance, and documentation, explore the professional support available at LegalTax.in.

For business owners simultaneously managing personal legal matters — such as succession, divorce, or business asset disputes arising from matrimonial proceedings — expert guidance is also available at QuickDivorce.in.

Protect your brand. Enforce your rights. And do it with the full force of India’s criminal trademark law on your side.

Disclaimer: This blog is intended for general informational and educational purposes only and does not constitute legal advice. Please consult a qualified intellectual property lawyer for advice specific to your situation and trademark.

Tags: criminal remedy for trademark infringement, Section 103 Trade Marks Act, Section 104 Trade Marks Act, trademark infringement India 2026, trademark infringement punishment, how to file criminal complaint trademark, Section 115 trademark raid, Trade Marks Act 1999, trademark enforcement India, trademark infringement penalty India

Aman G

I’m Aman Arora aka Aman G — 10+ years in SEO and Digital Marketing, and I love getting results. I don’t just do SEO & Website Design; I build strategies that work. I’m a CA drop out, but what I enjoy most is helping entrepreneurs and NGOs reach their goals. For me, happy customers are the real reward.

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