Section 126 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 126 builds a promise into every sale of marked goods or services. Where a trade mark or trade description has been applied to goods or services sold, the seller is deemed to warrant that the mark is genuine and not falsely applied and that the trade description is not a false trade description within the meaning of the Act. The only way out is a signed writing, delivered at the time of sale and accepted by the buyer. If a dispute has arisen over a sale, a legal consultation can help you read your rights.
On a sale of goods (or a contract for services) to which a trade mark or trade description has been applied, the seller is deemed to warrant that the mark is genuine and not falsely applied, and that the description is not a false trade description. The warranty is excluded only if the contrary is expressed in writing signed by or on behalf of the seller, delivered at the time of the sale or providing of services and accepted by the buyer.
What the section says
Section 126 opens: "Where a mark or a trade mark or trade description has been applied to the goods on sale or in the contract for sale of any goods or in relation to any service". It then provides:
"... the seller shall be deemed to warrant that the mark is a genuine mark and not falsely applied, or that the trade description is not a false trade description within the meaning of this Act unless the contrary is expressed in writing signed by or on behalf of the seller and delivered at the time of the sale of goods or providing of services on contract to and accepted by the buyer."
Breaking it into parts
| Element | Text | Meaning |
|---|---|---|
| Trigger | A trade mark or trade description has been applied to the goods on sale, or in the contract for sale, or in relation to any service | Applies to goods and to services |
| Who | The seller | The party who sells or provides the service |
| Implied warranty (mark) | The mark is a genuine mark and not falsely applied | The mark was applied properly, by or with the authority of the owner |
| Implied warranty (description) | The trade description is not a false trade description within the meaning of the Act | The description is not false in the way the Act treats false descriptions |
| Exclusion | "unless the contrary is expressed in writing signed by or on behalf of the seller" | Needs a signed writing |
| Timing | Delivered at the time of the sale of goods or providing of services | Not later |
| Acceptance | Accepted by the buyer | The buyer must take it |
The three conditions for excluding the warranty
A seller who wishes to say "I do not warrant that this mark is genuine" must satisfy all of these:
- The contrary is expressed in writing.
- The writing is signed by or on behalf of the seller.
- It is delivered at the time of the sale (or of providing the service) to the buyer and accepted by him.
A line printed on an invoice that the seller does not sign, or a notice on a shop wall, does not on the face of the text meet the requirement of a signed writing delivered to and accepted by the buyer. A verbal statement at the counter does not meet it either.
Example. Khanna Electricals sells a set of fans to Sharma Hotels. Each fan carries a well-known brand label. The fans turn out to be copies, and the label was falsely applied. Khanna gave no signed writing excluding the warranty. Under section 126 Khanna is deemed to have warranted that the mark was genuine and not falsely applied. By contrast, if Khanna had handed over a signed note at the time of sale saying the fans were sold as unbranded copies and Sharma accepted it, the contrary would have been expressed in writing as the section requires.
Goods and services both
The section speaks of "the sale of goods or providing of services on contract". The trade mark can be applied "in relation to any service". A service provider who uses a mark in its offer or contract is a "seller" for this purpose on the words of the section. The text does not elaborate and gives no examples.
What the section does not say
- It does not say what remedy a buyer has. The section creates a deemed warranty; it does not itself state damages, refund or any other remedy, and it does not state a penalty. We do not describe remedies under other laws.
- It does not define "false trade description". The words are "false trade description within the meaning of this Act". For the false-mark offences, see sections 101–102 and sections 103–105.
- It does not say the buyer must prove the seller's knowledge. The warranty is deemed; knowledge is not mentioned.
- It does not state a time limit or a forum.
Why it matters
For retailers and distributors, the section means a branded product is sold with an implied promise about its mark, whatever the seller knew. Resellers who source goods from third parties therefore need to be sure of the mark's genuineness, or to give a proper signed exclusion where they are not. Distributors in a supply chain may want to manage this by contract with their own suppliers, which is outside what the section states.
For buyers, the section is a statutory starting point: the warranty arises unless the seller has used the signed-writing route.
Practical points
- Buy from sources that can prove the mark is genuine; keep invoices and authorisations.
- If you sell goods you cannot vouch for, a signed written exclusion delivered at sale and accepted by the buyer is the route the section provides.
- Keep a copy of the signed note, with proof that the buyer accepted it.
- For service contracts, check that any mark or description in your offer is accurate.
Need help with a dispute over marked goods?
If you have bought or sold goods whose mark turns out to be false, the first questions are what was applied, what was said at the sale and whether anything signed was handed over. Our legal consultation service can go through the documents and advise on the next step.
Key takeaways
- On a sale of goods or services to which a trade mark or description has been applied, the seller is deemed to warrant the mark is genuine and not falsely applied.
- The seller also warrants that the trade description is not a false trade description within the meaning of the Act.
- The warranty is excluded only by a signed writing delivered at the time of sale and accepted by the buyer.
- The section does not state a remedy, fee, penalty or time limit.
Read next
- Sections 127–128: powers of the Registrar and discretionary power
- Section 125: rectification application to be made to the High Court
- Penalties for using false trade marks: sections 101–102
- Criminal offences under the Trade Marks Act: sections 103–105
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.