Section 113 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 113 tells a criminal court what to do when a person charged with a trade mark offence says that the complainant's registration is invalid. The court does not decide that question itself. If the plea looks tenable, it adjourns for three months so that the accused can apply to the High Court for rectification of the register, and the prosecution waits for that application. Because the timing is tight, many accused persons take legal dispute resolution advice first.
Where the charge is under section 103, 104 or 105 and relates to a registered mark, and the accused pleads that the registration is invalid, a court that finds the plea prima facie tenable must adjourn for three months from the date the plea is recorded so the accused can apply to the High Court for rectification. If the application is made in time, the prosecution is stayed until it is disposed of. If it is not made, the court proceeds as if the registration were valid.
A note on the wording
The printed section says "Appellate Board" in sub-section (1)(a) and (c), and "tribunal" in sub-section (2). The Tribunals Reforms Act, 2021 (its clause (r) for section 113) substitutes "High Court" for "Appellate Board" at both places and "Registrar or the High Court, as the case may be," for "tribunal". Before the Tribunals Reforms Act, 2021 this read "Appellate Board" in (1)(a) and (c) and "tribunal" in sub-section (2). This article uses the current wording.
When section 113 applies
Section 113(1) applies where:
- the offence charged is under section 103, 104 or 105; and
- it is in relation to a registered trade mark; and
- the accused pleads that the registration of the trade mark is invalid.
For those offences, see sections 103–105. If the mark is unregistered, section 113 has no work to do on its terms.
Sub-section (1): the three steps
| Clause | What happens |
|---|---|
| (a) | If the court is satisfied the 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 is recorded, to enable the accused to file an application before the High Court for rectification of the register on the ground that the registration is invalid |
| (b) | If the accused proves to the court that he has made the 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 stand stayed till the disposal of the application |
| (c) | If within three months, or the extended time, the accused fails to apply to the High Court, the court shall proceed with the case as if the registration were valid |
How it works in practice
- The accused records the plea of invalidity.
- The court asks one question only: is the defence prima facie tenable? It is not asked to decide invalidity.
- If yes, the clock of three months starts from the date the plea is recorded.
- The accused must file the rectification application and then prove to the court that he has done so.
- Once proved, the criminal case stands stayed. If not, the criminal case resumes with the registration treated as valid.
The three months can be extended only for "sufficient cause", and the extension is the court's to give. The section does not define sufficient cause.
Example. Gupta Footwear is charged under section 104 for selling goods under a registered mark, "STRIDE-X". Its owner says the registration is invalid because the mark was not distinctive. The court finds the plea prima facie tenable and records the plea on 5 July, adjourning to 5 October. Gupta files for rectification in the High Court on 20 August and shows the court the filing. The prosecution is stayed until that application is decided. Had Gupta filed nothing by 5 October (and obtained no extension), the court would proceed as if "STRIDE-X" were validly registered.
Sub-section (2): application already pending
Sub-section (2) deals with the case where, before the institution of the complaint, an application for rectification on the ground of invalidity "has already been properly made to and is pending before the Registrar or the High Court, as the case may be". In that case the court:
- shall stay the further proceedings in the prosecution pending disposal of that application; and
- shall determine the charge against the accused in conformity with the result of the application, in so far as the complainant relies upon the registration of his mark.
| Sub-section (1) | Sub-section (2) | |
|---|---|---|
| Starting point | Accused pleads invalidity during the prosecution | Rectification application already pending before the complaint |
| Court's first step | Test: prima facie tenable? | Stay is mandatory ("shall stay") |
| Time given | Three months from the plea, extendable | No period stated; until disposal |
| Where application goes | High Court | Registrar or High Court, as the case may be |
| Effect on charge | If not applied, proceed as if valid | Decide in conformity with the result, as far as the complainant relies on the registration |
The words "properly made" in sub-section (2) are not defined. The text does not say what makes an application improper.
Why the section matters for brand owners
For a proprietor who files a complaint, section 113 means that a challenge to the registration can stall the criminal case for months. For an accused, it opens a time-bound window that must be used: the application must be filed and then proved to the court. The route of rectification is described in section 57 and, for the High Court, in section 125.
The section does not say that the plea must be in writing, does not give a form or fee for the rectification application, and does not say which proceedings carry on in the meantime. The form and fee are matters for the Trade Marks Rules, 2017 and for High Court rules. Where the Code of Criminal Procedure, 1973 is relevant to the criminal case, note that from 1 July 2024 it was replaced by the Bharatiya Nagarik Suraksha Sanhita (BNSS).
Practical points
- If you are the accused, diary the three-month date from the day the plea is recorded.
- File the rectification application first, then bring proof of filing to the court.
- If you need more time, apply to the court for further time on sufficient cause before the period ends.
- If you are the complainant, check whether any rectification application against your mark is already pending.
Need help with a prosecution where the registration is challenged?
Whether you hold the mark or are charged over it, the three-month window and the choice of forum are what decide the next step. Our legal dispute resolution team can review the charge, the registration and the dates, and plan the rectification filing with you.
Key takeaways
- Section 113 applies to charges under sections 103, 104 and 105 relating to a registered mark.
- A prima facie tenable plea of invalidity leads to a three-month adjournment from the date the plea is recorded.
- The accused applies to the High Court for rectification; before the Tribunals Reforms Act, 2021 this read "Appellate Board".
- Application made in time: prosecution stayed. No application: court proceeds as if the registration were valid.
- Sub-section (2) makes a stay mandatory where a rectification application was already pending before the complaint.
Read next
- Section 114: offences by companies
- Section 124: stay of suit where validity of registration is questioned
- Rectification and removal of a trademark from the register
- How to file Form TM-26 for rectification or cancellation
Disclaimer: Based on the Trade Marks Act, 1999 as amended by the Tribunals Reforms Act, 2021 and the Jan Vishwas (Amendment of Provisions) Act, 2023, as consulted on 1 October 2026. Forms, fees and procedure are set by the Trade Marks Rules, 2017 as amended from time to time. This article is general information, not legal advice; check the official text before acting.