Section 27 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 27 draws one line that every brand owner should know. If your mark is not registered, you cannot sue for infringement under the Act. But the Act expressly leaves untouched your right to sue for passing off, and the remedies that go with it. If you are weighing which route fits your facts, a trademark infringement notice is usually the first formal step.
Sub-section (1): no person is entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark. Sub-section (2): nothing in the Act affects rights of action against any person for passing off goods or services as the goods or services of another, or the remedies in respect of it. Registration decides whether you can sue for infringement; passing off stays open to anyone with the underlying rights.
Sub-section (1): no infringement action for an unregistered mark
"No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark."
Read it in two halves:
| Words | Meaning |
|---|---|
| "No person shall be entitled to institute any proceeding" | A bar on starting the proceeding |
| "to prevent, or to recover damages for" | Covers both stopping the act (an injunction-type claim) and money claims |
| "the infringement of an unregistered trade mark" | The bar applies to unregistered marks only |
What counts as infringement is set out in section 29, which speaks of use of a registered trade mark by a person who is not its proprietor or a permitted user. The right to exclusive use comes from registration under section 28. Section 27(1) is therefore the other side of that coin: without registration there is no infringement action under the Act. See also section 29.
The practical reason to register early is explained in benefits of trademark registration.
Sub-section (2): passing off is untouched
"Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods of another person or as services provided by another person, or the remedies in respect thereof."
Points to note:
- "Nothing in this Act shall be deemed to affect" - the Act does not cut down the right of action.
- "passing off goods or services as the goods of another person or as services provided by another person" - both goods and services are covered.
- "or the remedies in respect thereof" - the remedies stay as well.
- The sub-section does not define passing off and does not list its elements. It refers to the right of action as it stands outside the Act. For the explanation of that action in practice, see what is passing off in trademark law and passing off: common law protection for unregistered marks.
- It does not say that a registered mark loses the right to sue for passing off. The words "any person" in the first limb and "rights of action against any person" in the second are not limited to unregistered owners.
Suits relating to the relief in a suit for infringement or for passing off are dealt with in section 135, covered later in this series.
Infringement and passing off side by side
| Question | Infringement | Passing off |
|---|---|---|
| Needs a registered mark? | Yes; section 27(1) bars it for an unregistered mark | The Act does not make registration a requirement (27(2)) |
| Where is it dealt with in the Act? | Sections 28 and 29 | Section 27(2) saves the right; the Act does not set out the elements |
| What is covered? | Use of a registered mark in the ways set out in section 29 | Passing off goods or services as those of another |
| Remedies | As provided by the Act | The remedies in respect of passing off are saved |
A deeper comparison is in infringement vs passing off: key differences.
Example. Madhuri's Kitchen has sold pickles under the name "Madhuri's Kitchen" in its town for years but never registered the name. A competitor starts selling pickles in similar get-up under "Madhuri Kitchen". Under section 27(1) Madhuri's Kitchen cannot sue for infringement of an unregistered mark. Under section 27(2), the right of action for passing off, and its remedies, are not affected.
What section 27 does not say
- It does not say what a plaintiff must show to succeed in passing off.
- It does not give a limitation period.
- It does not give a court or a procedure. Jurisdiction is in section 134 and relief in section 135.
- It does not say that registration is mandatory. It says only that the infringement action depends on it.
Practical points
- Register as early as you can. Without registration, the infringement route in the Act is closed to you.
- Keep evidence of your reputation. Passing off rests on facts such as how long and where the mark has been used. The Act itself is silent on the details, so the facts should be kept in order: invoices, advertisements, sales figures.
- Do not assume registration replaces passing off. Section 27(2) leaves the right of action untouched for "any person".
- Send a notice before suing. A well-founded notice sets out which right is relied on. For the content, see cease and desist notice for trademark infringement.
- Read section 28 and 29 together with 27. They deal with the exclusive right and with what amounts to infringement.
Need help with an unregistered mark that has been copied?
If someone is trading on your name or get-up and you have not yet registered, the choice of route matters. Our trademark infringement notice team reviews your facts, advises whether the matter is one of passing off or infringement, and drafts the notice.
Key takeaways
- Section 27(1): no proceeding to prevent, or to recover damages for, infringement of an unregistered trade mark.
- Section 27(2): rights of action for passing off, and the remedies, are not affected by the Act.
- Both goods and services are covered in sub-section (2).
- The section does not define passing off; it saves the existing right of action.
- Registration opens the infringement route under sections 28 and 29.
Read next
- Section 28: rights conferred by registration
- Section 29: infringement of registered trade marks
- What is passing off in trademark law
- Infringement vs passing off: key differences
Disclaimer: Based on the Trade Marks Act, 1999 as amended by the Tribunals Reforms Act, 2021 and the Jan Vishwas (Amendment of Provisions) Act, 2023, as consulted on 1 October 2026. Forms, fees and procedure are set by the Trade Marks Rules, 2017 as amended from time to time. This article is general information, not legal advice; check the official text before acting.