Chapter XII - Offences, Penalties and Procedure
Section 113
Section 113: Invalidity defence in a prosecution
A tenable challenge to registration can trigger a rectification process and a stay in prosecutions under sections 103–105 involving that registration.
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This article is for general information. Refer to the Trade Marks Act, 1999 official text for the official provisions. If you need professional advice for your situation, contact Bizeneed.
Statutory text
Bare law
(1) Where the offence charged under section 103 or section 104 or section 105 is in relation to a registered trade mark and the accused pleads that the registration of the trade mark is invalid, the following procedure shall be followed:—
(a) If the court is satisfied that such defence is prima facie tenable, it shall not proceed with the charge but shall adjourn the proceeding for three months from the date on which the plea of the accused is recorded to enable the accused to file an application before the High Court under this Act, for the rectification of the register on the ground that the registration is invalid.
(b) If the accused proves to the court that he has made such application within the time so limited or within such further time as the court may for sufficient cause allow, the further proceedings in the prosecution shall stand stayed till the disposal of such application for rectification.
(c) If within a period of three months or within such extended time as may be allowed by the court the accused fails to apply to the High Court for rectification of the register, the court shall proceed with the case as if the registration were valid.
(2) Where before the institution of a complaint of an offence referred to in sub-section (1), any application for the rectification of the register concerning the trade mark in question on the ground of invalidity of the registration thereof has already been properly made to and is pending before the Registrar or the High Court, as the case may be, the court shall stay the further proceedings in the prosecution pending the disposal of the application aforesaid and shall determine the charge against the accused in conformity with the result of the application for rectification in so far as the complainant relies upon the registration of his mark.
Rule and business relevance
Where the court finds the defence prima facie tenable, it adjourns for three months to enable a High Court rectification application. Timely filing, or filing within an allowed extension for sufficient cause, leads to the stated stay. A properly pending invalidity application predating the complaint follows subsection (2).
Limits and related provisions
Merely asserting invalidity does not automatically terminate or stay every prosecution. Failure to make the required application allows the case to proceed as if the registration were valid.
Hypothetical business example
Hypothetical example: An accused raises a substantiated registration challenge and files the required High Court application within the court’s allowed period, then proves the filing to obtain the statutory stay.
Practical decision flow
Identify the charged provision and registered mark.
Check whether rectification was already properly pending or requires a new application.
Meet the court’s filing directions and place the result before the criminal court.
Applying the Act and current procedure
Read the statutory rule together with the applicable Trade Marks Rules, current Registry directions and the facts of the particular mark. Forms, fees and procedural requirements should be checked against their current official source before filing.
Practical checklist
Do
- Identify the charged provision and registered mark.
- Check whether rectification was already properly pending or requires a new application.
- Meet the court’s filing directions and place the result before the criminal court.
Avoid
- Merely asserting invalidity does not automatically terminate or stay every prosecution. Failure to make the required application allows the case to proceed as if the registration were valid.
Glossary
- Prima facie tenable
- The threshold the court must find for the new-application route.
- Rectification stay
- The pause pending determination of the qualifying registration challenge.
Frequently asked questions
Does a bare allegation of invalidity suffice?
No. The section requires the stated judicial assessment and procedural steps.
What if the accused misses the allowed filing period?
The court proceeds as if the registration were valid.
What if an application properly predates the complaint?
Subsection (2) prescribes a stay and use of its result to the extent the complainant relies on registration.
Need help applying this provision to your situation?
Contact BizeneedLast updated 10 October 2026