Sections 31 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.
When a registered trade mark is challenged, two questions come up at once: does registration itself prove anything, and what if the mark should not have been registered in the first place? Section 31 treats registration as prima facie evidence of validity. Section 32 protects a mark registered in breach of section 9(1) if it has since acquired distinctiveness. Where a registration is under attack, legal dispute resolution support starts with exactly this evidence.
In all legal proceedings relating to a registered mark, including applications under section 57, the original registration and all later assignments and transmissions are prima facie evidence of validity (31(1)). A mark will not be held invalid for lack of registrability under section 9 if it had become distinctive by use at the date of registration (31(2)). Under section 32, a mark registered in breach of section 9(1) is not to be declared invalid if, after registration and before any legal proceedings challenging validity, it has acquired a distinctive character.
Section 31(1): registration is prima facie evidence
"In all legal proceedings relating to a trade mark registered under this Act (including applications under Section 57), the original registration of the trade mark and of all subsequent assignments and transmissions of the trade mark shall be prima facie evidence of the validity thereof."
| Phrase | Meaning |
|---|---|
| "In all legal proceedings ... (including applications under Section 57)" | Applies in suits and in rectification and similar applications |
| "the original registration" | The first registration |
| "and of all subsequent assignments and transmissions" | Later changes of ownership recorded under the Act |
| "prima facie evidence of the validity" | Evidence at first sight; it is not conclusive and can be answered |
The words "prima facie" matter. They mean the registration stands as evidence of validity unless it is displaced. They do not make the registration unchallengeable; section 57 and the other rectification provisions remain open. See section 57. For your own protection, keep the registration and every recorded assignment in order; see sections 37-38.
Section 31(2): distinctiveness at the date of registration
"In all legal proceedings, as aforesaid a registered trade mark shall not be held to be invalid on the ground that it was not a registrable trade mark under Section 9 except upon evidence of distinctiveness and that such evidence was not submitted to the Registrar before registration, if it is proved that the trade mark had been so used by the registered proprietor or his predecessor in title as to have become distinctive at the date of registration."
The sub-section is one long sentence, and the Act itself words it awkwardly. Its core is: a registered mark is not to be held invalid on the ground that it was not registrable under section 9 if it is proved that the proprietor or his predecessor in title had so used it that it had become distinctive at the date of registration. The words "except upon evidence of distinctiveness and that such evidence was not submitted to the Registrar before registration" sit in the middle of the sentence exactly as quoted above; the section does not explain them further, so rely on the closing proof-of-use limb.
| Element | Text |
|---|---|
| Ground attacked | Not a registrable trade mark under section 9 |
| Answer | Proof that use by the registered proprietor or predecessor in title made the mark distinctive at the date of registration |
| Date that matters | The date of registration |
Section 9(1) and its proviso on distinctiveness acquired through use are covered in section 9. If you face a section 9 objection, our trademark objection reply page covers the written answer.
Section 32: acquired distinctiveness after registration
"Where a trade mark is registered in breach of sub-section (1) of Section 9, it shall not be declared invalid if, in consequence of the use which has been made of it, it has after registration and before commencement of any legal proceedings challenging the validity of such registration, acquired a distinctive character in relation to the goods or services for which it is registered."
Four elements:
- The mark was registered in breach of section 9(1);
- It has, in consequence of use, acquired a distinctive character;
- in relation to the goods or services for which it is registered; and
- this happened after registration and before commencement of any legal proceedings challenging the validity of the registration.
The result: it "shall not be declared invalid".
Example. "SWADISHT" is registered for snacks and later challenged as descriptive under section 9(1). The proprietor has used it for years and it now identifies one maker's snacks. If it acquired that distinctive character after registration and before any proceeding challenging validity began, section 32 says it shall not be declared invalid. If distinctiveness was already there at registration, section 31(2) is the section to look at.
How the two sections differ
| Point | Section 31(2) | Section 32 |
|---|---|---|
| Ground attacked | Not registrable under section 9 | Registered in breach of section 9(1) |
| Time of distinctiveness | At the date of registration | After registration and before the challenge begins |
| Needs proof of use | Yes, by the proprietor or predecessor in title | Yes, "in consequence of the use which has been made of it" |
| Result | Not held invalid | Not declared invalid |
What the sections do not say
- They do not say how much use is enough; no period or volume is stated.
- They do not say what evidence is accepted; see the Rules.
- Section 32 does not protect a mark whose distinctiveness is acquired only after legal proceedings have commenced; the text fixes the cut-off at commencement.
- Neither section states a fee or a form.
Practical points
- Keep dated proof of use. Invoices, advertising and sales records support distinctiveness at registration or afterwards.
- Keep the assignment record straight. Section 31(1) refers to "subsequent assignments and transmissions".
- Do not wait for a challenge to build evidence. Section 32 looks at distinctiveness before proceedings begin.
- Treat prima facie as a starting point. It helps, but a challenger can still raise grounds.
Need help defending a registration?
If your registration has been challenged, or you are facing a descriptiveness objection, the way the evidence is organised matters. Our legal dispute resolution team helps you assemble proof of use and assignments and represents you in the proceedings.
Key takeaways
- Section 31(1): the original registration and all later assignments and transmissions are prima facie evidence of validity in all legal proceedings, including section 57 applications.
- Section 31(2): a mark is not held invalid under section 9 if proved distinctive by use at the date of registration.
- Section 32: a mark registered in breach of section 9(1) is not declared invalid if it acquired distinctive character after registration and before any challenge began.
- Neither section gives a fixed period or amount of use.
Read next
- Section 29: infringement of registered trade marks
- Section 33: effect of acquiescence
- Section 9: absolute grounds for refusal of registration
- Trademark cancellation petition: grounds and process
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.