One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.
Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.
TL;DR: Brand infringement in Formality Check Pass trademark stage is a genuine problem, and no, the Trade Marks Registry will not hand you a registration certificate to wave at a marketplace. What you do have is a priority date, common-law rights in the name you have been using, and the right to sue for passing off. Platforms usually move only when a court order lands in their inbox, not before.
Nitin Agarwal makes steel casseroles and storage jars in Rajkot. He sells them online. The unit is small, but it has grown enough that he finally paid an agent to file his brand name in Class 21. That application went in during February 2025. The status on the Trade Marks Registry portal has read Formality Check Pass ever since.
Then a regular customer forwarded him a screenshot. Same brand name. Same label layout. A product photograph that looked copied down to the shadow on the lid. The price was about a third lower. The seller was listing on Snapdeal, one of the three platforms Nitin sells on.
He wrote to Snapdeal's brand protection team. Three complaints over five weeks, three near-identical replies. The platform recognises only Registered brands, they said. Not applications sitting at Formality Check Pass.
He approached the Chamber of Advocate Sudhir Rao in March 2025. The first thing the chamber did was stop treating a marketplace policy as the final word on his rights. Advocate Sudhir Rao and his office filed a suit for passing off and moved an application for an interim injunction. The court granted it. The listing came down
The listing came down. That is not the end of it — a seller can relist under a different name the same week — but an injunction changes who has to move next. The screenshot his customer forwarded is still on his phone. His application is still sitting at Formality Check Pass.
One interim order in one matter tells you nothing about anyone else's. What it does show is the sequence, and the sequence is what most people get wrong.
Key facts of the situation
- Brand name applied for in Class 21, the class for household containers, kitchenware and storage goods.
- Application pending, status showing Formality Check Pass, no registration certificate issued.
- An online seller listed the same brand name with a near-identical label at roughly a third of the price.
- Three complaints to the marketplace over five weeks. Three refusals, on the ground that the brand was not on its register of registered brands.
- A civil suit for passing off, plus an application for interim injunction. An interim order followed, and the listing was taken down.
What Formality Check Pass actually means
The Registry runs a series of stages after you file Form TM-A. The first is a clerical check — has the form been signed properly, is the agent's authorisation attached, is the class correct, is the description of goods sensible. Clear that and the status moves to Formality Check Pass.
It means the paperwork is in order. It does not mean the mark has been examined for conflicts with existing marks. It does not mean the mark has been accepted. It does not mean it will be registered.
What comes next is examination, where the Registry can raise objections and you get a set period to reply. If the application survives, the mark is advertised in the Trade Marks Journal, and a four-month window opens for anyone to oppose it. If nobody opposes, the Registrar proceeds to registration. Realistically that whole sequence runs anywhere from under a year to well over two years. Nobody can tell you which, on the day you file.
Does brand infringement in Formality Check Pass trademark stage give you a right to sue?
It gives you a right to sue — just not the one most people assume. Section 27(1) of the Trade Marks Act, 1999 is blunt: no person is entitled to institute a proceeding for infringement of an unregistered trade mark. Section 27(2) immediately saves the common-law action. Nothing in the Act takes away the right to sue for passing off.
So a pending applicant cannot sue for infringement. A pending applicant can sue for passing off, on the strength of use, not registration.
Passing off needs three things proved: reputation or goodwill in the name in the market, a misrepresentation by the other side likely to deceive a buyer, and damage. A copied label at a third of the price is close to the textbook version of all three at once.
Two sections matter more than people expect. Section 34 of the Act protects a prior user: a registered proprietor cannot interfere with someone who has used the mark earlier. That cuts both ways, and it is the reason the evidence of your earliest use matters far more than the certificate you are waiting for. And the priority date your application carries blocks a later application in the same class — but only if your mark is ultimately accepted.
What the pending application does and does not do
- Gives you a priority date. The filing date is the date that counts when a later application for a similar mark in the same class comes in. That date survives the wait.
- Gives you one dated document. Useful, but it is not the strongest paper in a passing-off case. Your earliest invoice bearing the mark is.
- Does not give you a right to sue for infringement. That needs registration. Section 27(1) of the Trade Marks Act, 1999 says so in terms.
- Does not restrain anyone. A pending application is not an injunction. It stops nobody from using the name while you wait.
- Does not let you use the ® symbol. Falsely representing an unregistered mark as registered is an offence under Section 107 of the Act. Use "TM", or nothing at all.
- Does not promise registration. Examination objections and a four-month opposition window both remain open.
Why the marketplace refused to act
Platforms are private companies. Their brand protection programmes are contractual, not statutory, and most of them verify a registration certificate number because that is easy to check. An application number sitting at Formality Check Pass is not.
A refusal from a marketplace settles nothing about whether there is brand infringement in Formality Check Pass trademark stage. The Registry decides what gets registered. A court decides what is passing off. A platform's intake form decides neither. What the platform's refusal does do is tell you the complaint route has run out.
Two options remain. One, escalate in writing to the platform's grievance officer. Intermediaries in India operate under Section 79 of the Information Technology Act, 2000, and their safe harbour depends on acting once they have actual knowledge — usually meaning a court order. Under the IT Rules, 2021, a grievance officer must acknowledge and dispose of complaints within fixed windows, and where a court order exists, access to the listing has to be disabled within a short, set period measured in hours. Two, get the order.
In practice, option two is what worked here. Not because courts are faster than platforms, but because a court order removes the platform's discretion entirely.
What a passing off suit in India involves
The sequence is fairly standard in an IP matter.
- A legal notice to the seller, demanding they stop and account for sales. Sometimes this ends it. Often they take the listing down, wait, and reappear under another seller name.
- A civil suit for passing off, filed before the commercial court where the dispute qualifies as a commercial dispute under the Commercial Courts Act, 2015 — intellectual property disputes are included, and the specified value threshold is currently ₹3 lakh.
- An application for interim injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908, heard early. This is the application that matters to a seller losing sales by the day.
- Where the other side's stock or records are likely to vanish, an application for appointment of a local commissioner under Order 26 Rule 9 CPC for search and seizure. These are granted in IP matters, sometimes without notice.
- If the injunction holds, the suit itself can take years. Most people get what they actually wanted at the interim stage.
The pre-institution step, and the exception
Section 12A of the Commercial Courts Act, 2015 requires mediation before a commercial suit is filed — except where the plaintiff contemplates urgent interim relief. A listing that is taking sales away every day is the standard example of urgency, and courts have entertained suits filed on that footing. This is one reason the evidence of what the listing is doing to your sales should be gathered before filing, not after.
What the court weighs on the interim application
Three questions, roughly. Have you used the mark long enough and openly enough to have goodwill in it? Is the other side's label close enough that an ordinary buyer, with imperfect memory, would be confused? Would a refusal of the injunction damage you more than an injunction would damage them?
A near-copy of your label undercutting you by two-thirds touches all three. A weak version — different label, slightly different name, higher price — touches none of them, and on those facts there may be little to argue. The strength of your case is decided by those three questions, not by how annoyed you are.
Preserve the evidence before you do anything else
Suits fail on missing paperwork more often than on the law. Put these in one folder, dated, today.
- The earliest invoice, GST return or bill bearing the mark and your name. This is your proof of use, and its date is the one the court will care about most.
- Screenshots of the offending listing with the full URL, the seller name and the date and time you captured them.
- Your label and packaging files — the design source, the date on the file, the printer's bill for the first print run.
- Advertising and publicity material showing the mark in front of buyers, with dates and spend.
- Customer messages, especially the one that flagged the other seller. A confused buyer is direct evidence of confusion.
- A test purchase from the other seller, kept unopened with the invoice and courier label intact.
Electronic records have their own rule. The Bharatiya Sakshya Adhiniyam, 2023 governs electronic evidence, and the certificate it requires for an electronic record — the provision carrying the old Section 65B requirement — is what a court will ask for. A phone screenshot pasted into a document is not the same thing as the original file with its metadata. Keep the originals, and do not delete the chat with your customer.
Criminal remedies, briefly
Sections 103 and 104 of the Trade Marks Act, 1999 create offences for applying a false trade mark and for selling goods bearing one. Section 115 of the Act deals with cognizance and with police powers of search and seizure, and certain of these offences are cognizable, which is why sellers sometimes find a police complaint more alarming than a civil suit.
Where there is deliberate deception of buyers, a cheating complaint under the Bharatiya Nyaya Sanhita, 2023 can be filed as well. A criminal complaint and a civil suit can run together. Whether the criminal route adds anything depends on the facts — on a bare label dispute with no forged documents, it usually adds noise and delay rather than relief.
Delay, limitation and what it costs
An injunction against continuing sales is not defeated by limitation, because each sale is a fresh wrong. A claim for damages is different: three years, broadly, from when you knew. The bigger risk is not the Limitation Act but the equitable one — a court asked for an interim injunction after two years of silence will ask why you waited, and the answer had better be good.
Costs are two parts. Court fee is ad valorem, calculated on the value you put on the suit, and the rate varies from state to state. Professional fees depend on how many hearings the interim application takes and whether a local commissioner has to be appointed. Anyone quoting you a single figure before seeing the listing, the label and the invoices is guessing.
Frequently Asked Questions
Can I sue for infringement while my application is only at Formality Check Pass?
No. Section 27(1) of the Trade Marks Act, 1999 bars an infringement action on an unregistered mark. Section 27(2) preserves the passing-off action, and that is what gets filed in practice — on the strength of your use in the market, not your application.