There is a moment in every trademark prosecution that no one treats with the seriousness it deserves, and the consequences of that inattention arrive five years later in a witness box.
The moment is when the agent fills in the “used since” date on the TM-A and prepares the affidavit of use under Rule 25 of the Trade Marks Rules, 2017. The founder signs without reading. The agent files. The Trade Marks Registry processes the application. The certificate eventually arrives. Everyone moves on.
Five years later, an infringement suit is filed. The defendant’s cross-examination begins. The user date affidavit India, that piece of paper no one re-read for half a decade, becomes the document on which the entire case turns. Not the certificate. Not the product. The affidavit that was signed in three minutes and never reconsidered.
What Rule 25 Actually Does to Your Litigation Position
Rule 25(2) of the Trade Marks Rules, 2017 is unambiguous. If use of the trade mark is claimed prior to the date of application, the applicant must file an affidavit testifying to such use along with supporting documents. The Registry has consistently treated dated, address-bearing commercial documentation as the standard of proof for use claims. In litigation, the standard is stricter.
The user date pleaded in the affidavit is the date the plaintiff is locked to at trial. That is not a procedural point. It is a strategic constraint that determines the entire shape of the case.
Claim 2015 in the affidavit and fail to produce dated 2015 invoices in the suit, and priority collapses. When priority collapses, the Section 34 prior user defence evaporates. The Section 11(2) cross citation against a competitor’s later mark disappears. The honest concurrent use position under Section 12 loses its factual foundation. The ability to invoke continuous use in well-known mark arguments under Section 11(6) weakens materially. Each of these consequences flows from the same single date entry that the founder signed without reading.
The cascading consequences from a single user date entry are extraordinary and they are entirely preventable. The founder who signs the TM-A affidavit without assembling the supporting documentation is not completing a registration form. They are pleading their litigation case five years ahead of the suit, on factual ground they have not verified and may not be able to defend.
The Cross Examination Pattern That Destroys Priority Claims
From the perspective of litigation counsel who argue these matters from both sides, the user date inconsistency is one of the most reliable cross-examination demolition tools available in Indian trademark litigation.
Inconsistency between the date entered on the TM-A and the date claimed in the Rule 25 affidavit is a routine target. So is inconsistency between either date and the earliest invoice produced in the suit. The witness who has pleaded 2015 use in the affidavit and produces 2017 invoices as the earliest available documentation faces a contradiction that the cross-examiner will exploit methodically.
The witness’s confidence collapses inside three questions when the documents on record contradict each other. The Court does not read that contradiction as a clerical error or an honest mistake of memory. It reads it as a statement about the witness’s credibility, and the credibility finding follows the witness throughout the remainder of their testimony. The infringement case that appeared strong on the pleadings weakens materially when the witness who is meant to establish priority cannot defend the date they pleaded.
The evidentiary standard the Court applies is unforgiving in its specificity. Sales invoices, dated and address-bearing, year on year, from the claimed first use date through to the application date. Not a handful of dated social media posts. Not undated promotional material assembled retrospectively. Not a single contemporaneous email referencing the brand in passing. A continuous invoice trail, addressing Indian buyers, in Indian commercial format, demonstrating the use the affidavit claims.
The Startup Mistakes That Create Perjury Exposure
For early-stage companies filing trademark applications on the IP India portal, two practices recur with dangerous frequency and both create exposure that founders rarely anticipate when the application is filed.
The first is filing “proposed to be used” and subsequently attempting to backdate commercial use through a supplementary affidavit or through a conversion of the application once commercial activity begins. This is treated not as a strategy but as a false statement, both under the Trade Marks Act and under the general provisions governing sworn documents. The application history is public and searchable. The original filing date, the original use claim, and the subsequent amendment are all visible to any defendant who looks. The pattern is easy to identify, the contradiction is documentary, and the cross-examination writes itself from the public record.
The second is the founder-led portal filing where the user date is entered without any reference to the supporting documentation, often inflated because an earlier date feels commercially advantageous or because the founder genuinely believes use began before it can be documented. Two years later, when the infringement suit is filed and the founder enters the witness box as the primary use witness, the inflated date collapses inside two questions. The mark may survive on its own merits. The founder’s credibility as a witness, and with it the evidentiary case for the priority claimed, does not.
Neither mistake is a difficult mistake to avoid at the filing stage. Both are expensive mistakes to correct after the application has been published and the litigation timeline has started running.
The 2025 Delhi High Court Ruling and What It Confirms
The Delhi High Court’s 2025 ruling in CO (COMM.IPD TM) 355/2021 and connected matters, decided on 19 May 2025, reinforces the documentary continuity standard that the Court has consistently applied to user date claims.
The defendant in that matter invoked honest concurrent use and prior use defences. The Court accepted both defences. The reason the Court accepted them is precise and it is worth understanding in detail. The defendant had produced a 1990 invoice and a series of subsequent invoices demonstrating consistent, bona fide commercial use of the mark from that date forward. The documentation was continuous. The dates were verifiable. The transaction trail was coherent.
The defendant won because the documents existed, were continuous, and were dated. The merits of the infringement claim became secondary to the evidentiary foundation the defendant had built through twenty-five years of preserved commercial records. The lesson is not that honest concurrent use and prior use are always available. The lesson is that they are available to the party who has the documents to support them, and unavailable to the party who does not.
What Foreign Brand Owners Filing in India Must Understand
For foreign brand owners entering India through Madrid Protocol designations or Paris Convention priority claims, the user date affidavit India presents a structural consideration that has no equivalent in most home jurisdictions and that foreign associates rarely flag at the point of filing.
The user date pleaded in an Indian Trade Marks application is not the same question as the priority date claimed under the Paris Convention or the international registration date under the Madrid Protocol. Those frameworks determine filing priority as between competing applicants at the Registry. They do not determine the user claim that Indian Courts apply when assessing which party has established earlier use in Indian commerce.
Indian Courts evaluate user under Indian commercial standards. Use in Indian commerce means use evidenced by Indian invoices, addressed to Indian buyers, recording Indian rupee transactions, reflecting genuine commercial activity in India. Use elsewhere in the world, however extensive and however well documented, is not Indian use and does not satisfy the Indian user affidavit standard.
A transnational brand owner who has been selling globally since 2000 but in India only since 2022 has a 2022 user claim in India. The affidavit must reflect that. An affidavit that claims 2000 use because the global commercial history begins in 2000 creates a contradiction with the Indian invoice record that a well-advised defendant will exploit precisely as described above.
For in-house counsel managing trademark portfolios across multiple jurisdictions, this means the Indian user affidavit should be prepared by Indian counsel working from the Indian sales record, not completed by a foreign agent operating off the global filing template with global commercial history as its reference point. The cost difference between delegated filing and instructed Indian filing is modest. The litigation exposure created by a delegated affidavit that reflects global rather than Indian commercial history is not modest.
The Three Operational Rules
For every client managing a trademark portfolio in India, three operational rules apply to the user date affidavit and none of them is complicated to implement at the filing stage.
The first rule is to assemble the invoice file before writing the date. Before any user date is entered on the TM-A, the documentation that would defend that date under cross-examination in the Delhi High Court should be assembled and reviewed. Sales invoices dated in the year of claimed first use, addressed to Indian buyers, bearing the mark in the form claimed. If that documentation cannot be assembled on the day the affidavit is being prepared, the date being considered is wrong and the affidavit being drafted is perjury bait.
The second rule is to treat the affidavit as a permanent sworn document once filed. Every amendment to the user date or the supporting documentation is impeachment material at trial. The cross-examiner treats every amendment as an admission that the original was incorrect. The correction that seemed minor at the Registry stage becomes a credibility problem at the evidence stage. The rule is not that the affidavit can never be corrected. The rule is that correction carries litigation consequences that should be factored into the decision to amend.
The third rule is to audit historic registrations with user dates of uncertain provenance before they become the subject of challenge. The cheapest moment to address a defective user date affidavit is before a defendant has identified the defect and built a cross-examination around it. After the challenge is raised in a written statement, the options for remediation narrow quickly and the cost of managing the problem escalates proportionally.
The prosecution decision and the litigation decision are the same decision. They are made five years apart. The affidavit signed at the Registry stage is the testimony given in the witness box at trial. Treat it accordingly from the moment the first draft is prepared.
