Section 33 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 33 is a section about sitting still. If the proprietor of an earlier trade mark knows that a later mark is in use and does nothing for a continuous period of five years, he loses the right to attack that later mark on the basis of the earlier one, unless the later registration was not applied for in good faith. The section also restrains the later proprietor in return. If a dispute between two marks is already building, legal dispute resolution advice early is worth having.
Where the proprietor of an earlier trade mark has acquiesced for a continuous five years in the use of a registered later mark, being aware of that use, he can no longer (a) apply for a declaration of invalidity of the later registration, or (b) oppose the use of the later mark for the goods or services on which it has been used. The exception: where the later registration was not applied for in good faith. Under sub-section (2), the later proprietor in turn cannot oppose the earlier mark.
Sub-section (1): five years of aware acquiescence
"Where the proprietor of an earlier trade mark has acquiesced for a continuous period of five years in the use of a registered trade mark, being aware of that use, he shall no longer be entitled on the basis of that earlier trade mark— (a) to apply for a declaration that the registration of the later trade mark is invalid, or (b) to oppose the use of the later trade mark in relation to the goods or services in relation to which it has been so used, unless the registration of the later trade mark was not applied in good faith."
Take it in parts:
| Element | Text | Points to note |
|---|---|---|
| Who | The proprietor of an earlier trade mark | The person whose rights come first |
| What he did | "acquiesced ... in the use of a registered trade mark" | The later mark must be a registered one |
| For how long | "a continuous period of five years" | The period must be continuous |
| Knowledge | "being aware of that use" | Awareness is part of the test |
| Loss (a) | Cannot apply for a declaration that the later registration is invalid | The attack on the register is closed |
| Loss (b) | Cannot oppose the use of the later mark for the goods or services for which it has been used | The loss is limited to those goods or services |
| Exception | "unless the registration of the later trade mark was not applied in good faith" | Bad-faith registration is outside the protection |
What the text does not define
The section does not define "acquiesced". It does not say from when the five years run, what shows that the earlier proprietor was aware, or what makes an application "not in good faith". The text is silent on these. If you rely on acquiescence, or face it, state the facts with dates, and take advice on how these questions are decided.
Limited to those goods or services
Clause (b) is tied to use "in relation to the goods or services in relation to which it has been so used". The later proprietor does not gain wider rights; he gains only the shelter of what has been used.
Why registration of the later mark matters
The section starts from "the use of a registered trade mark". A later user without registration is not within the words of section 33. Their position would have to be considered under other provisions, such as the saving for prior users in section 34.
Sub-section (2): the other side of the bargain
"Where sub-section (1) applies, the proprietor of the later trade mark is not entitled to oppose the use of the earlier trade mark, or as the case may be, the exploitation of the earlier right, notwithstanding that the earlier trade mark may no longer be invoked against his later trade mark."
Even though the earlier proprietor can no longer invoke his earlier mark against the later one, the later proprietor cannot oppose the use of the earlier mark or the exploitation of the earlier right. The two marks can co-exist, with neither side able to stop the other, in the field where sub-section (1) applies.
| Who | After five years of aware acquiescence |
|---|---|
| Earlier proprietor | Cannot seek invalidity of the later registration; cannot oppose its use for the goods or services on which it has been used (unless the later registration was not applied in good faith) |
| Later proprietor | Cannot oppose use of the earlier mark or exploitation of the earlier right |
Example. Jyoti Textiles has used "JYOTI" for fabrics since long before Jyotika Fabrics registered "JYOTIKA" for similar fabrics. Jyoti Textiles knew of the use of "JYOTIKA" and did nothing for five continuous years. Under section 33(1), Jyoti Textiles can no longer apply to have the registration of "JYOTIKA" declared invalid on the basis of "JYOTI", and cannot oppose its use for those fabrics, unless "JYOTIKA" was not registered in good faith. Under section 33(2), Jyotika Fabrics cannot oppose Jyoti Textiles' use of "JYOTI".
How section 33 fits with other provisions
- Relative grounds. Earlier marks are the foundation of section 11; see section 11. Section 33 limits what the proprietor of such a mark can do after acquiescence.
- Rectification. Applications to declare registration invalid are made under the rectification provisions; see section 57.
- Prior use. Section 34 protects continuous prior use, a different basis.
Practical points
- Do not wait. If you learn that a later mark is in use and registered, count five years from your awareness and act well before that.
- Write down when you became aware. The section turns on awareness and continuity.
- Act through the proper route. A written objection, a notice or a rectification application is the visible sign that you have not acquiesced; see trademark watch and monitoring services.
- If you are the later proprietor, keep proof of open, continuous use during the period, and of good faith when you applied.
- Take advice on good faith. The exception is the part most likely to be argued.
Need help with a dispute over an earlier or later mark?
Whether you are the earlier owner wondering if time is running against you, or the later owner relying on years of open use, the dates and facts decide the outcome. Our legal dispute resolution team reviews the history of both marks and advises on the next step.
Key takeaways
- Five continuous years of acquiescence, with awareness of the use of a registered later mark, bars the earlier proprietor from seeking a declaration of invalidity or opposing the use of the later mark.
- The bar is limited to the goods or services on which the later mark has been used.
- The exception is where the later registration was not applied for in good faith.
- Under sub-section (2), the later proprietor cannot oppose the earlier mark's use.
- The Act does not define acquiescence or state when the five years begin.
Read next
- Section 31-32: registration as evidence of validity and acquired distinctiveness
- Section 34: saving for vested rights of prior user
- Section 11: relative grounds for refusal of registration
- Trademark watch and monitoring services
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.