Can Trademark Rights Exist Even Without Continuous Commercial Use?

Trademark law often looks deceptively simple from a distance. A mark identifies the source of goods or services, and the law steps in to prevent confusion. But step closer, and the terrain becomes far less linear. Brands do not always move in straight lines. Businesses pause, pivot, relaunch, or retreat altogether. In an economy shaped by volatility, venture cycles, and digital-first models, continuous commercial use is no longer the default condition of brand life. This raises a question that courts increasingly confront: can trademark rights survive even when a mark is not in constant use?

Indian trademark jurisprudence has answered this question with a careful blend of certainty and restraint. At its core lies a recognition that trademark rights in India are not built on a single foundation. They rest instead on dual architecture statutory rights arising from registration, and common-law rights emerging from use and goodwill. Understanding how these two strands interact is essential to understanding why non-use does not always mean non-existence.

The Trademarks Act, 1999, makes its starting point clear. Section 28 confers upon a registered proprietor an exclusive right to use the mark and to seek relief in infringement. This right flows from the act of registration itself, not from the intensity or continuity of commercial activity. Section 31 reinforces this position by clothing registration with a presumption of validity. Indian courts have treated this presumption with seriousness. A registered mark is not lightly displaced.

This statutory logic explains why Indian courts have consistently rejected the argument that mere non-use weakens enforceability. From American Home Products v. Mac Laboratories¹ to the more recent Modi Mundipharma v. Specialty Meditech, the position has remained steady: gaps in use do not erode statutory exclusivity. Unless and until the registration itself is removed, the proprietor's Section 28 rights continue to operate with full force. In infringement actions, non-use is not a defence, it is, at best, a trigger for a different legal process.

That corrective mechanism lies in Section 47(1)(b). This provision ensures that trademark law does not become a shelter for abandoned brands. Where a mark has not been used for a continuous period of five years, it becomes vulnerable but only if a rectification action is actually brought. The Supreme Court captured this balance succinctly in Hardie Trading Ltd. v. Addisons Paints²: registration remains enforceable unless and until it is struck off the register. Non-use does not automatically hollow out a right; it must be proved, pleaded, and adjudicated.

Courts have also been careful not to read "use" narrowly. Commercial reality, not formalistic thresholds, guides interpretation. In Kabushiki Kaisha Toshiba v. Toshiba Appliances³, licensing arrangements and limited market presence were held to be sufficient to demonstrate use. The message is subtle but important, 'trademark law does not punish disruption or restrained commercial strategies. It intervenes only where non-use crosses into abandonment'.

This distinction comes into sharp focus in the Delhi High Court's decision in Kiranakart Technologies Pvt. Ltd. v. Mohammad Arshad⁴ the now widely discussed Zepto case. Zepto sought cancellation of an earlier ZEPTO registration that had remained dormant for nearly a decade. The respondent offered no rebuttal. An investigator's affidavit demonstrated the absence of genuine commercial activity for over eight years. Applying Section 47(1)(b), the Court concluded that the mark had become deadwood occupying register space without performing its essential function as a source identifier. Drawing from Russell Corp Australia (P) Ltd. v. Ashok Mahajan⁵, the court reaffirmed that once non-use is established in rectification, the presumption of validity collapses.

Yet it would be a mistake to read Zepto as signalling a dilution of registered rights. The decision is careful, even conservative, in its reasoning. Non-use mattered only because the case was framed as rectification. In a parallel universe where no Section 47 challenge was mounted the outcome could have been entirely different.

That contrast is visible in Ashish Aggarwal v. Racing Promotions⁶. Here, the plaintiff's use of the mark "X1" had been irregular, interrupted by business challenges. Still, the court enforced the registration. The defendant had not sought rectification. Promotional efforts and an intention to continue use were enough to sustain the plaintiff's statutory claim. Read together, Zepto and X1 do not contradict each other. They reveal the internal coherence of the system.

The distinction becomes even clearer when infringement is contrasted with passing off. Passing off lives entirely in the realm of goodwill. Without continuous public association, the claim weakens, sometimes fatally. This is why courts in cases such as N.R. Dongre v. Whirlpool Corporation⁷ insist on a demonstrable and ongoing market connection. In infringement, registration anchors the right. In passing off, use is the right.

Sections 34 and 47 complete the architecture. Section 34 protects prior users against later registrants. Section 47 removes registrations that outlive their commercial relevance. Between them lies a deliberate balance: trademarks cannot be attacked casually, but they also cannot be hoarded indefinitely. Stability is preserved without freezing the marketplace.

Indian courts have increasingly acknowledged that modern commerce does not move in uninterrupted cycles. Use may be preparatory, digital, licensed, or modest. What matters is bona fide intention, not commercial dominance. The judiciary has resisted a punitive view of non-use, choosing instead to separate tactical obstruction from genuine brand stewardship.

Comparative perspectives reinforce this balance. The United States, under the Lanham Act, ties rights closely to use, treating prolonged non-use as abandonment. Europe adopts a registration-led model, but with a five-year vulnerability window. India aligns more closely with the European approach prioritizing certainty while insisting on eventual market engagement.

For businesses, the takeaway is pragmatic. Registration remains a powerful shield, even through periods of commercial uncertainty. But it is not an amulet. Minimal, documented use through licensing, promotion, or digital presence matters. So does vigilance. Where unused registrations block genuine enterprise, Section 47 offers a precise tool for correction.

Trademark law ultimately protects marks that continue to function as identifiers in commerce. When a brand remains alive, even quietly, the law stands with it. When it falls silent for too long, the register makes space for those ready to speak again.

Footnotes

1 American Home Products v. Mac Laboratories, AIR 1986 SC 137.

2 Hardie Trading Ltd. v. Addisons Paints, AIR 2003 SC 3377.

3 Kabushiki Kaisha Toshiba v. Toshiba Appliances, 2008 (10) SCC 766.

4 Kiranakart Technologies Pvt. Ltd. v. Mohammad Arshad, 2025 SCC OnLine Del 1401.

5 Russell Corp Australia (P) Ltd. v. Ashok Mahajan, 2023 SCC OnLine Del 4796.

6 Ashish Aggarwal v. Racing Promotions, CS (COMM) 384/2019.

7 N.R. Dongre v. Whirlpool Corporation, (1996) 5 SCC 714.

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