By S&S Co. Advocates & Solicitors · Published 15 October 2026 · Informational content, not legal advice: see our disclaimer
A brand owner who discovers a copycat mark in the market rarely wants a considered, months-long trial. They want the infringer stopped before the next festive season, the next product launch, or the next week of lost sales, and that urgency is exactly what an interim injunction under Order XXXIX of the Code of Civil Procedure is designed to address, provided the case is put together properly from the first filing.
This guide sets out how Indian courts, particularly the Delhi High Court, have actually been applying the triple identity test to grant or refuse urgent relief through 2025, what evidence makes an ex parte application succeed, and where the test has failed even on marks that look similar at first glance.
The statutory and procedural framework
A trademark owner alleging infringement files a suit under Sections 134 and 135 of the Trade Marks Act, 1999 seeking a permanent injunction, along with ancillary relief such as delivery up of infringing goods and rendition of accounts of profits earned from the infringement. Section 29 of the Act defines infringement broadly, covering use in the course of trade of a mark identical with or deceptively similar to a registered mark, including where that use causes, or is likely to cause, confusion or an association with the registered mark in the mind of the public.
The urgent relief itself comes through an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, read with Section 151, filed alongside the suit, asking the court to restrain the infringing use pending the final disposal of the case. Because an ex parte order is granted without hearing the other side at all, courts expect the supporting evidence to be unusually clear and specific, since the defendant has had no opportunity to respond before the order takes effect against them.
The triple identity test and what it actually checks
Courts assess three things together: whether the mark used by the defendant is identical or deceptively similar to the plaintiff's registered mark, whether the goods or services are identical or closely related, and whether the trade channels through which the goods reach the consumer are the same or overlapping. Where all three line up, courts have treated the case for infringement as strong, often strong enough to justify an ex parte ad interim injunction on the first hearing itself, without waiting to hear the defendant's side.
A string of 2025 Delhi High Court orders illustrates how readily this plays out once the triple identity is made out cleanly. In Delhi Public School Society v. Delhi Public School International Bhiwadi, decided in December 2025, the court granted an ex parte ad interim injunction against a Rajasthan institution using the name Delhi Public School International and the abbreviation DPS, finding the conduct satisfied the triple identity test and made out a prima facie case of both infringement and passing off. Similar ex parte relief was granted in 2025 in disputes over the SIGNATURE perfume mark, where the court also appointed a Local Commissioner to seize infringing goods, and over the LOTUS mark, where the court specifically recorded that the marks, the nature of the goods or services, and the trade channels were all identical.
Where the test fails, and what that teaches about pleading a case
The triple identity test is not a rubber stamp, and courts have refused interim relief where the marks, despite superficial similarity, were not actually likely to confuse an ordinary consumer. In a January 2025 Delhi High Court order in a dispute between the marks MAHINDRA ZEO (eZEO) and EZIO, the court declined an interim injunction, reasoning that use of the defendant's mark was unlikely to cause confusion with the plaintiff's registered mark given the overall impression created by the marks as actually used, rather than a word-by-word comparison in isolation.
The practical lesson for a plaintiff's lawyer is to build the application around specific, concrete points of overlap rather than a general assertion that the marks look or sound alike. Evidence of actual instances of confusion, such as customer queries mistaking one brand for the other, screenshots of the defendant's product listed alongside or instead of the plaintiff's in the same online marketplace category, and a side by side visual comparison of packaging or signage, carries far more weight than adjectives describing how similar the marks supposedly are. Where the goods or trade channels diverge even though the marks look similar, the application should address that gap directly rather than hoping the court overlooks it.
Local Commissioners and the value of acting fast
Where counterfeit or infringing stock is actively being sold, an application for the appointment of a Local Commissioner under Order XXVI of the Code of Civil Procedure, to visit the defendant's premises and seize infringing goods and account books, is frequently combined with the interim injunction application itself. This combination matters practically because an injunction alone restrains future conduct but does nothing about existing stock already in the market, while a Local Commissioner's visit can capture physical evidence of the scale of infringement, which is often decisive later when the court comes to assess damages or account of profits at the final hearing.
Delay in seeking this relief after learning of the infringement is one of the few points consistently held against plaintiffs, since courts reason that a brand owner who genuinely believes it is suffering ongoing, serious harm from infringement would be expected to move quickly rather than wait months before filing. A plaintiff that delays without a good explanation risks the court treating the claimed urgency as overstated, which can affect both whether ex parte relief is granted and how the balance of convenience is assessed.
What a final decree adds beyond the interim order
An interim injunction, however strongly worded, is not the end of the matter, and plaintiffs should treat it as a step toward, not a substitute for, pursuing the suit to a final decree, particularly where damages are a real commercial objective rather than simply stopping the infringing use. In the ORSL trademark dispute, the Delhi High Court's final judgment in July 2025 made an earlier December 2023 interim injunction absolute and also awarded damages of around rupees one point two crore, illustrating that a strong interim order, secured early, can translate into a substantial damages award once the matter reaches final disposal, provided the plaintiff continues to pursue the suit rather than treating the interim relief as sufficient on its own.
Plaintiffs who obtain a favourable ex parte order sometimes lose momentum on the underlying suit once the immediate commercial threat is addressed, but letting the suit languish leaves money on the table in cases where a genuine damages claim exists, and it also leaves the interim order vulnerable to being vacated later if the defendant successfully argues delay or inaction against the plaintiff's own conduct of the case.
Frequently Asked Questions
Our competitor is using a mark that sounds similar to ours but sells a completely different category of product. Will we get an interim injunction?
Possibly not through the triple identity test alone, since that test expects the goods or services to also be identical or closely related, not just the marks. You may still have an argument under passing off or dilution of a well known mark depending on the facts, but a straightforward triple identity case is harder to make out here.
We discovered the infringement eight months ago but only filed the suit last week. Does that hurt our chances of an interim injunction?
It can. Courts have treated unexplained delay as inconsistent with a genuinely urgent claim of serious, ongoing harm, and it can affect both whether ex parte relief is granted and the balance of convenience assessment generally. Be ready to explain the delay specifically if you want to minimise the damage to your application.
We got an ex parte injunction against an infringer. Do we need to do anything else, or is the matter effectively over?
The suit is not over, and you should continue pursuing it to a final decree, especially if you want damages or an account of profits. Courts have made earlier interim injunctions absolute and added substantial damages awards at final disposal, so letting the suit sit idle after the interim order can leave real money unclaimed.
Can we get the infringer's stock seized along with the injunction?
Yes, through an application for appointment of a Local Commissioner under Order XXVI CPC, usually filed alongside the interim injunction application. This is particularly useful where counterfeit goods are actively being sold, since it captures physical evidence of the infringement's scale that an injunction alone would not address.
References & Further Reading
The provisions and rulings below were relied on for this guide. The position can change with amendments and later decisions, so check the current text and the latest case law before acting on any of it.
- Trade Marks Act, 1999, Sections 29, 134 and 135
- Code of Civil Procedure, 1908, Order XXXIX Rules 1 and 2, and Order XXVI
- Delhi Public School Society v. Delhi Public School International Bhiwadi & Ors., CS(COMM) 1247/2025 (December 2025)
- GENSOL v. Mahindra, CS(COMM) 849/2024