India: Shifting Of Onus


Burden of Proof is the legal obligation on a party to prove the allegation made by him against another party. The burden of proof in a case lies with the plaintiff unless defendant counter with a factual claim based on the allegation, that is when categorical acceptance is made by the defendant and he is disputing a factual position.

The burden of proof is often associated with the Latin maxim "semper necessitas probandi incumbit ei qui agit," which means "the necessity of proof always lies with the person who lays charges." This is a statement of a version of the presumption of innocence that underpins the assessment of evidence in some legal systems, and is not a general statement of when one takes on the burden of proof. The burden of proof tends to lie with anyone who is arguing against received wisdom, but does not always, as sometimes the consequences of accepting a statement or the ease of gathering evidence in its defense might alter the burden of proof its proponents shoulder. The burden may also be assigned institutionally1.

As per section 101 of the Indian Evidence Act 1872 "Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that he burden of proof lies on that person". Burden of proof can define the duty placed upon a party to prove or disprove a disputed fact, or it can define which party bears this burden. In criminal cases, the burden of proof is placed on the prosecution, who must demonstrate that the defendant is guilty before a jury may convict him or her. But in some jurisdiction, the defendant has the burden of establishing the existence of certain facts that give rise to a defense, such as the insanity plea. In civil cases, the plaintiff is normally charged with the burden of proof, but the defendant can be required to establish certain defenses. Difference between Burden of proof and onus of proof Here it is pertinent to mention that even though terms 'Burden of proof & Onus of proof' are used interchangeably but there is a difference between the burden of proof and onus of proof. The rule regarding the Burden and onus of proof can be summarized as below:

  • Burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts.
  • Burden of proof would be on a party whose suit would fail if no evidence was let in.
  • Burden of proof on the pleadings of a party never shifts to the other party.
  • Onus of proof by a party would cease the moment opposite party admits the transaction.
  • When a party produces evidence in support of his statement, onus would shift on the opposite party to adduce rebutting evidence to meet the case made out by the other party.
  • In civil cases, onus of proof is never fixed permanently, but it would fluctuate very frequently.

There are numerous cases wherein the 'burden of proof' has been used in place of 'onus of proof' interchangeably.


The Indian Courts on the numerous occasions dealt with the question of burden and onus of proof and shifting of the same during the proceeding. Dealing with the question of burden of proof in an action for infringement of trade mark, in Kaviraj Pandit Durga Dutt Sharma v. Navratna Pharmaceutical Laboratories2, the Supreme Court observed as follows:

"...In an action for infringement the onus (burden of proof) would be on the plaintiff to establish that the trade mark used by the defendant in the course of trade in the goods in respect of which his mark is registered, identical or is deceptively similar. "

Once the fact, that the defendant is infringing his trademark is established by the plaintiff, the onus shifts on the defendant to negate the claim. The burden to prove his case remains with the plaintiff but it is the onus that does keep on shifting during the infringement proceeding.


In opposition proceedings if the Opponent case is based upon his registered trademark or the use of the same and the reputation then these facts has to be established by the Opponent and once these facts are established by the proper evidence then onus shift to the Applicant to prove that his adoption was honest and the trademark applied is not similar to the Opponent's trademark and will not create any confusion and deception in the market.

In case of Gupta Enterprises Vs. M/s Gupta Enterprises and Anr3 it was held by the Hon'ble High Court of Delhi that "It is well settled principle of law that in an opposition proceeding the burden is ultimately upon the applicant to establish that he is entitled to the registration of the trade mark applied for. Where the opposition is based on the alleged registration of the trade mark or the use and reputation of the opponent's trade mark or on any other fact, the burden of establishing those facts lies upon the opponent. It is only when the opponent initially discharges his burden that the onus shifts to the applicant. In this case opponent miserably failed to discharge his initial burden. Hence, Registrar was not justified in allowing the opposition".

In Paras Corporation vs. Khemraj Devaramji Sudvesa (Shree Charbhuja Products) & the Joint Registrar of Trade Marks4: There was an issue about confusion and deception since the mark 'FEMINA' used by both the Petitioner & Defendant were identical. It was held in such cases when the marks are identical; there is every possibility of confusion and deception being caused. The burden to prove that the registration will not cause confusion or deception will be on the petitioner by user and reputation; the burden will shift to the applicant/defendant, if discharged by the Petitioner.

In Metropolitan Trading Company, Vs. Shri Mohanlal Agarwal (Shri Ram Baboo Garg), Mrs. Kusumlata Garg, Anil Kumar Garg, and Registrar of Trade Marks5 It was held that "Once the opponents have proved that they are the prior users of the mark in question then the burden (onus) shifts on to the applicant to prove that there will be no confusion or deception by use of the mark by them."

The rules related to the opposition under the Trade Marks rules, 2002 provides the equal opportunity to both opponent and applicant to prove their case but the ultimate burden remains with opponent to prove that the registration of the trademark of the applicant will create the confusion and deception in the market and would cause irreparable loss to reputation of his business.


In cases of rectification the burden of proof is on the party challenging the validity of a trademark. The plaintiff has to prove that registered trademark not deserve to be on register due to violation of one or more provision of the Act. A mark that has been registered under the provision of the Act is presumed to be valid until the contrary is proved as per the Section 31.

In case of Shri Anand Bansal, (Sole Proprietor Ansul Industries) Vs. Shiva Tobacco Co. and Registrar of Trade Marks, Trade Marks Registry6 It was held by the court of law that an applicant who seeks relief under Clause (b) or Clause (c) of Section 32 of the Act, the onus (burden) of proof is on him to show that the trade mark attracts either of those provisions. The observations of Justice B. Mukherjee made in Formica case (1971) 75 CWN 663 were quoted:

"Mark on the register, you want to take off the Register? The onus (burden) is then upon you to prove that the mark deserves to be taken of so. This is plain common sense too. I am on the register. Sure enough, it is not for me to prove that I should be where I am and that the entry in my favour is valid. Were I to prove so, why register? Registration becomes valueless."

The applicant, as mentioned earlier, has not stated anything about this in his pleadings. Further, the burden of proof is on the applicant who comes to the Board for rectification of the mark on the ground that the trade mark was not distinctive of the goods of the registered proprietor on the date of filing of the petition. A trade mark must be removed from the register on an objection under Section 11 if on the date of registration the use of mark was likely to cause deception or confusion or registration was otherwise obtained in contravention of that section.

In cases of infringement where the validity of a mark comes into question the court as per section 124 stay the suit for the time and provide the time to the party to initiate the rectification proceeding against the mark alleged to be invalid. In these cases the party alleging the mark to be invalid has the burden to prove the same. The alleged mark would be presumed to be valid until proven contrary.


The burden of proving a fact lies with the person alleging the same and it does not shift. It is the onus which keeps on shifting in a case. In cases related to the trademark law the onus keeps on shifting from the plaintiff to defendant. In opposition proceedings, it is the Opponent who has to prove that the registration of the trademark would be against the law but once the same is established by the opponent the onus shifts on the applicant to negate the claim. In rectification proceedings, it is on the person alleging the mark to be the one that is not capable to remain in the register due to one reason or another and when the same is established by the applicant the onus shift to the registered proprietor to prove the contrary. Whereas in the infringement case the burden remains on the Plaintiff to prove that the impugned mark is similar to his mark and use of the same is causing the injury to his business once it is established by the plaintiff the onus shifts to the defendant to deny the said claim.



2 [1965]1SCR737

3 AIR1998Delhi232

4 MIPR2008(1)13

5 MIPR2008(1)24

6 MIPR2007 (1)90

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions