If you are stuck in such a situation, here is what to do.

Mr. Alok Verma, a digital creator from Pune, was shocked to find his popular Instagram account, with the username ‘auranet.nation.first’, suddenly removed. The account, which he had built over two years, was suspended following a trademark infringement report. After filing an initial appeal, he heard nothing for nearly six months. Eventually, he received an email from the social media platform identifying the reporting party as ‘Zenith Digital Media Corp’ and the allegedly infringed trademark as ‘AuraNet’.

The platform’s support team advised him that the only way to restore his account was to directly contact Zenith Digital Media Corp and convince them to send a formal retraction to Instagram. Despite sending a polite email to the reporting party, Mr. Verma received no response. He is now left with the option of submitting a detailed appeal through the platform’s trademark appeal form, unsure of what legal grounds to cite or how to phrase his request to get a positive response and resolve the issue.

Advice in such cases

Dealing with a trademark dispute on a social media platform can be frustrating. The platform often acts as a neutral intermediary, placing the burden of resolution on the two parties involved. Here is some general advice:

• Understand the claim. Is the trademark registered? Is your use of the name likely to cause confusion in the minds of the public, making them believe your account is officially associated with the brand?
• Review the platform’s trademark policy thoroughly. This will help you understand the process and what information they require for an appeal.
• Communicate professionally. When contacting the reporting party, be polite and state your case clearly. Avoid aggressive or emotional language.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

Such disputes are primarily governed by intellectual property law in India. The key statutes are:

• The Trade Marks Act, 1999: This is the principal legislation governing trademarks in India. Section 29 defines what constitutes trademark infringement. If a person uses a mark that is identical or deceptively similar to a registered trademark for similar goods or services, it can be considered infringement. The concept of “passing off,” a common law remedy, is also relevant if an unregistered trademark is used in a way that misrepresents a connection to the original brand.
• The Information Technology Act, 2000 (and its Rules): Social media platforms like Instagram are considered ‘intermediaries’ under this Act. They are granted ‘safe harbour’ protection, meaning they are generally not liable for third-party content as long as they follow due diligence, which includes taking down content upon receiving a valid complaint of illegality, such as trademark infringement.

If you are the complainant

If you are the owner of a registered trademark and someone is using it without permission on a social media platform, here are the steps you should take:

• Send a Cease and Desist Notice: The first formal step is to have a lawyer draft and send a legal notice to the infringing party, demanding that they stop using your trademark.
• Use Platform Reporting Tools: Simultaneously, use the social media platform’s official intellectual property reporting form. Provide your trademark registration details and evidence of the infringing use.
• File a Lawsuit: If the above steps fail, you can file a suit for trademark infringement and passing off in the appropriate commercial court to seek an injunction and damages.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

If your account has been suspended or removed based on a trademark claim, you are the ‘victim’ of the takedown action. Here is what you should do:

• Assess the Claim’s Validity: Do not panic. First, assess if your use could genuinely be considered infringing. Were you running a commercial enterprise using the name? Were you creating confusion? Or was it a fan page, a parody account, or used in a descriptive, non-commercial manner?
• Use the Appeal Process: File a counter-notification or appeal through the platform’s official process. Clearly explain why your account does not infringe on the trademark. For example, you can argue that your use is nominative fair use, parody, or that your account’s content is entirely unrelated and unlikely to cause any confusion.
• Communicate with the Complainant: As advised by the platform, try to resolve the matter with the reporting party. A well-drafted email from a lawyer can often get a response where a user’s email might be ignored.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

Trademark infringement is primarily a civil wrong, not a criminal one, unless it involves counterfeiting of goods. The police have a very limited role in disputes over social media usernames. If you approach the police, they will likely inform you that it is a civil matter and direct you to file a case in a civil court. Police will only intervene if there are elements of fraud, cheating, or the sale of counterfeit products, which are criminal offenses.

FAQs people normally have

• Can I use a company’s name in my username at all?
  It depends on the context. Using a trademark in a way that suggests affiliation or endorsement is infringement. However, using it for purposes of commentary, criticism, news reporting, or parody (nominative fair use) may be permissible, but this is a legally complex area.
• What if the reporting party doesn’t respond to my emails?
  This is a common problem. If they do not respond, your primary recourse is to pursue the appeal process with the social media platform vigorously. If the platform is unresponsive, a legal notice sent to both the platform and the reporting party may be necessary to compel a formal response.
• Can I sue the social media platform for removing my account?
  Suing a large social media platform is difficult due to their terms of service, which you agree to when creating an account. These terms often give them broad discretion to remove content or accounts. A lawsuit is more practically aimed at the reporting party for making a wrongful claim.

What evidence is required?

Evidence is crucial for both sides. The required documents typically include:

• For the Complainant (Trademark Holder): A copy of the trademark registration certificate, evidence of the mark’s use in commerce (advertisements, sales figures), and clear screenshots or links showing the infringing use by the other party.
• For the Accused Party (Account Holder): Screenshots of your account to show its nature and content, evidence that your use is non-commercial or falls under fair use, copies of all communication with the platform and the complainant, and any evidence showing you established your username before the trademark was widely known or used.

How long will the investigation take?

The timeline can vary significantly. An internal review by a social media platform can take anywhere from a few days to several months, as seen in Mr. Verma’s case. There is often no fixed timeline. If the matter goes to court, it can be a lengthy process. However, a lawyer can file for urgent interim relief from the court, such as an order to restore the account pending the final outcome of the case, which can be decided in a few months.

Advocate Sudhir Rao, Supreme Court of India