Section 26 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 26 is the shield for existing rights. It protects trade marks that contain a geographical indication where they were applied for, registered or acquired through use in good faith before the GI Act commenced or before the geographical indication was applied for. It also excludes goods whose name was the common name in any part of India on or before 1 January 1995, protects a person's right to use his own name, and puts a five-year limit on actions about trade marks that infringe a registered indication. Brand owners with older marks and GI holders both need to know this section. A legal consultation can help you place your mark or indication within it.
A trade mark containing a geographical indication that was applied for or registered in good faith, or acquired by good-faith use before commencement or before the GI filing date, is not prejudiced by the Act (s.26(1)). The Act does not apply to an indication identical with the common name of goods in any part of India on or before 1 January 1995 (s.26(2)). A person may use his own name unless it confuses or misleads (s.26(3)). No trade mark action may be taken five years after the infringement became known, subject to conditions (s.26(4)).
Sub-section (1): good-faith trade marks
"Where a trade mark contains or consists of a geographical indication and has been applied for or registered in good faith under the law relating to trade marks for the time being in force, or where rights to such trade mark have been acquired through use in good faith either— (a) before the commencement of this Act; or (b) before the date of filing the application for registration of such geographical indication under this Act, nothing contained in this Act shall prejudice the registrability or the validity of the registration of such trade mark under the law relating to the trade marks for the time being in force, or the right to use such trade mark, on the ground that such trade mark is identical with or similar to such geographical indication."
Its working parts:
| Part | Text |
|---|---|
| The mark | Contains or consists of a geographical indication |
| Route 1 | "applied for or registered in good faith under the law relating to trade marks" |
| Route 2 | "rights ... acquired through use in good faith" either (a) before the commencement of this Act or (b) before the date of filing the application for registration of the geographical indication |
| What is protected | Registrability, validity of registration, and the right to use the trade mark |
| Ground excluded | That the trade mark is "identical with or similar to such geographical indication" |
The grammar of the printed sentence is dense. The "either (a) ... or (b)" timing seems to qualify the second route (rights acquired through use); the first route has no date attached other than "good faith". We quote it as printed. Where the point is live, check the official text.
"Commencement" is the coming into force of the provision under section 1(3). The footnote to section 1 gives 15 September 2003 as the notified date, as explained in Section 1.
Example. Hillcrest Foods adopted "Riverbend Gold" for tea in good faith and used it openly for years. Later, the Riverbend valley producers apply to register "Riverbend". If Hillcrest's rights were acquired through good-faith use before the producers filed their application, section 26(1)(b) says the GI Act shall not prejudice Hillcrest's right to use the mark merely because it is identical with or similar to the geographical indication.
Sub-section (2): common name on or before 1 January 1995
"Nothing contained in this Act shall apply in respect of a geographical indication with respect to goods or class or classes of goods for which such geographical indication is identical with the term customary in common language as the common name of such goods in any part of India on or before the 1st day of January, 1995."
So where the indication is identical with the term that was customary in common language as the common name of the goods in any part of India on or before 1 January 1995, the Act does not apply to the indication for those goods. Note the words "any part of India": the test is not limited to the place of origin. Compare the generic names rule in section 9(f), which concerns refusal of registration and is framed differently. See Section 9.
Sub-section (3): own name
"Nothing contained in this Act shall in any way prejudice the right of any person to use, in the course of trade, that person's name or the name of that person's predecessor in business, except where such name is used in such a manner as to confuse or mislead the people."
A trader may use his own name, or his predecessor's, in the course of trade, unless it is used "in such a manner as to confuse or mislead the people".
Sub-section (4): the five-year limit
"Notwithstanding anything contained in the Trade Marks Act, 1999 (47 of 1999) or in this Act, no action in connection with the use or registration of a trade mark shall be taken after the expiry of five years from the date on which such use or registration infringes any geographical indication registered under this Act has become known to the registered proprietor or authorised user registered in respect of such geographical indication under this Act or after the date of registration of the trade mark under the said Trade Marks Act subject to the condition that the trade mark has been published under the provisions of the said Trade Marks Act, 1999 or the rules made thereunder by that date, if such date is earlier than the date on which such infringement became known to such proprietor or authorised user and such geographical indication is not used or registered in bad faith."
This sentence is long and its grammar is rough; the working structure appears to be:
| Element | Reading of the printed words |
|---|---|
| Rule | No action in connection with the use or registration of a trade mark after the expiry of five years |
| Clock starts from | The date on which the use or registration that infringes a registered indication "has become known" to the registered proprietor or authorised user |
| Alternative start | Or "the date of registration of the trade mark" under the Trade Marks Act, if that date is earlier than the date the infringement became known, subject to the trade mark having been published under the Trade Marks Act or its rules by that date |
| Condition | The geographical indication "is not used or registered in bad faith" |
So there are two possible starting points: knowledge by the proprietor or authorised user, or (if earlier) the date of registration of the trade mark, provided it had been published by then. The grammar of "or after the date of registration" is unclear; we quote it as printed. The practical lesson: watch for conflicting trade marks and act within five years.
What the section does not say
The text does not define "good faith", does not say how a prior user proves earlier use, and states no form, fee or forum.
Compare Section 25, which directs the Registrar of Trade Marks to refuse or invalidate certain marks; section 26 preserves some of them.
Need help with an older mark or a conflicting indication?
Timing is everything under this section: when a mark was applied for, when the indication was filed, and when the infringement became known. Our team can map your dates in a legal consultation.
Key takeaways
- Good-faith trade marks and rights acquired through good-faith use before commencement or before the GI filing are not prejudiced on the ground of identity or similarity (s.26(1)).
- The Act does not apply to an indication identical with the common name of goods in any part of India on or before 1 January 1995 (s.26(2)).
- A person's own name, or his predecessor's, may be used unless it confuses or misleads (s.26(3)).
- No action in connection with a trade mark after five years from knowledge, with conditions (s.26(4)).
Read next
- Section 27: power to cancel or vary registration and rectify the register
- Section 25: geographical indication as trade mark
- GI registration process: application to certificate
Disclaimer: Based on the Geographical Indications of Goods (Registration and Protection) Act, 1999 read with 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 rules made under the Act. This article is general information, not legal advice; check the official text before acting.