India: Shifting Of Onus

Last Updated: 28 June 2016
Article by Singh & Associates

Most Read Contributor in India, September 2016


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.

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