Trademark Infringement: Defendant Can Cross-Examine Plaintiff On Use Of Brand Name Even If Written Statement Is Not On Record: Supreme Court

"When the plaintiff affirms trademark infringement, even if the written statement is not on record, the defendant is entitled to put the question which queries the plaintiff on the document, to substantiate the time from which such brand name was used by the plaintiff." Supreme Court, in a significant and latest ruling, held that a defendant in a trademark infringement suit is entitled to cross-examine the plaintiff regarding the date of first use of the disputed brand name, even if the defendant's written statement has not been taken on record.

A bench comprising Justice J.B. Pardiwala and Justice K. Vinod Chandran observed that when trademark infringement forms the foundational basis of the plaintiff's claim for damages and injunction, precluding the defendant from testing the veracity of the brand's usage timeline is impermissible.

The dispute arose from a civil suit instituted by Dharampal Premchand Limited against appellant Shabu KN Achary, alleging trademark and copyright infringement alongside a prayer for damages. The plaintiff sought a permanent injunction restraining the defendant from infringing its trade-dress, along with a declaration that its trademarks are exclusive marks within the meaning of Section 2(1)(zg) read with Section 11(6) of the Trade Marks Act, 1999. During cross-examination, the defendant put a specific question to the plaintiff's witness asking whether they had any document to show since when the mark "BABA" had been used. The High Court expunged this question from the record, reasoning that it was a purely factual inquiry beyond permissible cross-examination because the defendant's written statement was not on record.

The core question before the Supreme Court was whether a defendant, in the absence of a written statement on record, is legally barred from putting questions during cross-examination concerning the foundational elements of the plaintiff's trademark infringement claim. The court was specifically called upon to determine the scope of permissible cross-examination in intellectual property suits where interim pleadings or affidavits assert proprietary use and infringement.

Defendant's Entitlement to Cross-Examine

The Supreme Court examined the pleadings, including the affidavit accompanying the plaintiff's injunction application, which specifically alleged that the defendant was using an identical brand name, packaging, and trade-dress. The bench noted that the very foundation of the plaintiff's suit for damages and injunction rests on establishing valid trademark and copyright ownership, coupled with proof of prior and continuous use.

Written Statement Absence Is Not a Bar - "Written Statement Absence Does Not Bar Inquiry"

The court emphatically rejected the High Court's reasoning that the absence of a written statement strips the defendant of the right to question the plaintiff on core assertions. The bench reasoned that when a plaintiff affirmatively pleads trademark infringement, the foundational facts—including the timeline of brand adoption and usage—are thrown open to challenge.

Substantiating the Time of Brand Use - "Querying the Plaintiff on Documents"

The apex court underscored that the disputed question—asking whether the plaintiff possessed documents showing the exact date from which the mark "BABA" was put into use—went directly to the root of the infringement claim. Denying the defendant the opportunity to test this crucial aspect would prejudice their defense against the damages claimed.

"No Observations on Merits"

Making it clear that it had not expressed any opinion on the merits of the underlying dispute, the bench preserved the right of both parties to agitate their respective contentions during the full course of trial. The court also clarified that the trial must proceed unhindered after incorporating the necessary answers.

Supreme Court Sets Aside High Court Order

Concluding its analysis, the Supreme Court allowed the appeal and reversed the impugned High Court order which had expunged the cross-examination question. The bench directed that the trial proceed further after recalling the plaintiff to record his answer to the disputed question, ensuring procedural fairness in intellectual property litigation.

The Supreme Court has thus clarified that procedural defaults such as an unrecorded written statement do not diminish a defendant's fundamental right to cross-examine the plaintiff on the core factual pillars of a trademark infringement and damages suit.

Date of Decision: 07 August 2026