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Intellectual Property · 7 August 2026

No Written Statement on Record Does Not Bar Cross-Examination on Trademark Use: Supreme Court

Source: Originally reported by LiveLaw, theindianlawyer.in, thelawadvice.com and updates.manupatra.com. This article has been independently researched and rewritten in full by S&S Co. Advocates & Solicitors for informational purposes: it is not a reproduction of the original reports. Readers are encouraged to consult the original sources and the underlying judgement directly.

A trademark trial usually stalls on the merits of the mark itself, not on whether the defendant is even allowed to ask a question. In Shabu K.N. Achary v. Dharampal Premchand Limited, the fight that reached the Supreme Court was procedural: could a defendant whose written statement had not been taken on record cross-examine the plaintiff on how long it had actually used the brand name it claimed to own exclusively.

Dharampal Premchand had sued over its 'BABA' mark, and during trial the defendant's counsel put a question to the plaintiff about the period of its brand usage. The High Court expunged that question. Its reasoning was straightforward on its face: without a written statement on record, the defendant had no pleaded defence to anchor such a line of cross-examination, so the question amounted to nothing more than a fishing expedition unsupported by any case of the defendant's own.

The Supreme Court reversed that order. The bench reasoned that the absence of a written statement cuts both ways. It stops the defendant from introducing an independent defence that was never pleaded, but it does not stop the defendant from testing the plaintiff's own case on the plaintiff's own terms. Here, the plaintiff's affidavit and plaint specifically asserted infringement and claimed exclusive rights over the BABA mark, and that assertion necessarily rested on a claimed timeline of use. Once the plaintiff put that timeline into issue by pleading it, the defendant was entitled to probe it through cross-examination, written statement or not.

That distinction drew a clear line between questioning a plaintiff's own pleaded case and raising a fresh defence through the back door of cross-examination. The first is always permissible because every plaintiff who makes a claim can be tested on the basis for that claim. The second would indeed require pleadings, since a court cannot be asked to adjudicate a defence that was never set out for the plaintiff to answer. The High Court had conflated the two, treating a legitimate challenge to the plaintiff's asserted facts as if it were an attempt to smuggle in an unpleaded defence.

Having reversed the High Court, the bench directed that the trial resume with the plaintiff recalled so that the expunged question, and presumably the line of cross-examination following from it, can actually be put and answered. The Court was careful to say it had expressed no view on the merits of the underlying trademark dispute between the parties; its ruling settled only the narrow evidentiary question of what a defendant without a written statement is still allowed to ask.

The holding matters beyond this one case because written statements get kept off the record for all sorts of reasons: a late filing that was never taken on board, a procedural default, a defendant who simply never got around to filing one before the matter moved to evidence. Trial courts faced with that situation have sometimes treated the absence of pleadings as a reason to shut down cross-examination altogether, on the theory that an unpleaded defendant has nothing to test the plaintiff on. This ruling tells them that is the wrong instinct. A plaintiff's own claim, once made, is fair game for cross-examination regardless of what the defendant did or did not plead in response.

For litigants on either side of a trademark suit, the practical takeaway is narrower than it might first appear. A defendant without a written statement on record gains no general licence to run a defence through cross-examination questions alone, since any attempt to establish facts going beyond what the plaintiff has itself pleaded will still need a defence properly on record. What such a defendant can do, and what this judgment protects, is press the plaintiff on the specific facts the plaintiff chose to allege, including something as central to a trademark claim as exactly how long the plaintiff says it has used the mark it is suing to protect.

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