The New Burden of Proof in Fast-Track IP Injunctions

Introduction : It has always been urgent to deal with intellectual property problems. Delay in the event a competitor introduces a product with a confusingly similar mark, or when copyrighted material is disseminated on the Internet prior to any response from the rights-holder, is not only inconvenient, it is a commercial disaster. Injunctions are the strongest remedy that can be granted to an IP owner, exactly for the reason that they require immediate cessation of the infringement, pending a final ruling on the merits. The tests established in Dalpat Kumar1 and Wander Ltd. aim to ensure that temporary injunctions are granted with caution, preventing courts from unintentionally allowing one party to oppress the other before the final decision in the case.

It is not the test itself that has changed in 2026, it is the rigor that courts have in enforcing that test to grant fast-track relief. The trend towards structured case management and the increasing number of Commercial Courts is also making timelines shorter, but has also made the threshold for “prima facie case” in IP matters higher. This article reviews the change, doctrinal support and implications for plaintiffs and defendants.

The Statutory Framework

The main laws related to interim injunction in an IP case in India are:

• Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 19083 (the general order for temporary injunction in civil suits); and
• Section 135 of the Trade Marks Act, 19994 which establishes a procedure for granting interlocutory injunctions in trademark infringement and passing off cases; and
• Section 55 of the Copyright Act, 1957,5 which offers civil remedies for infringement of copyright, such as injunctions; and
• The Commercial Courts Act, 2015 (as amended in 2018), which transferred high value IP cases to commercial courts and introduced mandatory case management timelines under Order XV-A CPC.

Moreover, the Commercial Division practice directions issued by the Bombay High Court in 2022 and the Rules notified by the Delhi High Court in 20227 have set out certain procedures to be followed in urgent IP applications, such as, for instance, mandatory disclosure requirements and expedient timelines for hearing.

Legal Analysis: What Courts Now Expect

1. Prima Facie Case: Beyond Ownership

Traditional concept of ‘prima facie case’ in IP issues meant a plaintiff needed to provide evidence of a subsisting right, whether it was a registered trademark, an original work or subsisting patent claim. Typically, courts were content when the documents evidencing registration were placed on record.

Recent case law, however, points to a much higher standard of expectation. In Hindustan Unilever Ltd. v. Emami Ltd., the Bombay High Court observed that where the defendant has raised a strong prima facie challenge to the distinctiveness of the mark or its prior use, then the applicant’s burden of producing the certificate of trademark registration is not discharged. The Court noted that prima facie satisfaction is not to be determined by a formula, but rather through a contextual analysis.

This indicates a shift from the registration-based proof to a more contextual stance, demanding that courts have from the very start evidence of actual use, market presence and type of alleged infringement. In fast track cases, this involves having sales figures, advertising records and proof of confusion, rather than title documents.

Irreparable Harm: The Quantifiability Problem

The irreparable harm clause has always been the most litigated clause in the injunction requirement. The traditional approach was that harm to goodwill and reputation was irreparable, and therefore presumed upon making a prima facie case in IP instances.

The Commercial Division courts have reacted against this presumption. In Kent RO Systems Ltd. v. Amit Kotak, the Delhi High Court rejected any presumption of irreparable harm in a trademark dispute in the absence of even a rough estimate of the loss suffered by the applicant. The Court stated that if damages can be determined from a known sales record, then a remedy in damages will suffice.

This requires plaintiffs to perform the uncomfortable task of trying to determine the value of the thing they are claiming can’t be measured: the amount of goodwill they’ve lost as it is eroded away by cheaper copies that bear their name, the reputational damage done when these cheaper products end up on the market, and the probable loss of customers. The defendants, on the other hand, take advantage of evidence that the plaintiff’s losses are recoverable, and that the damages to be suffered by the plaintiff if he is found liable are disproportionate.

Balance of Convenience and Promptitude

In the context of fast-track IP proceedings, the concept of “asymmetric hardship” has become more nuanced in the balance of convenience analysis. In Gujarat Bottling Co. Ltd. v. Coca Cola Co., the Supreme Court had warned that in addition to the losses suffered by the parties, public interest must also be taken into account while determining the balance of convenience. This principle has become more salient in relation to generic pharmaceutical marks, software products and content platforms in which injunctions impact third parties in 2026.

In the fast-track IP cases, courts now routinely demand whether applicants approached the court promptly after the awareness of alleged infringement. Two to three months’ delay has been considered as an unfair playing field for ex parte relief. In Midas Hygiene Industries Pvt. Ltd. v. Sudhir Bhatia, the Supreme Court remarked that a court should look at the degree of promptitude on the part of the applicant and an applicant who remained uninformed and thus did not act on the rights could not claim urgency to circumvent the process of giving notice.

The Ex Parte Threshold: A Higher Standard in Practice

The most important development of the fast-track IP injunctions in practice has been the reluctance of judges to impose an ex parte ad interim order in the absence of any real opposition. The Delhi High Court’s IPD has issued ex parte orders in a few instances, issuing short service notices that are to be returned within 24 – 48 hours, affording the defendant a reasonable opportunity of being heard before the order is issued, in the cases where the urgency is extreme and Order XXXIX Rule 3 CPC would allow for an ex parte order.

This practice is in line with the apprehension expressed in Steer Engineering Pvt. Ltd. v. Glance Digital Experience Pvt. Ltd. of courts being misled at the ex parte stage due to the lack of symmetric information. It is the applicant’s responsibility of utmost good faith and full disclosure – revealing any weak aspects of the applicant’s case – which has been emphasized for the first time by the Court in respect of fast-track applications.

Practical Implications

For Plaintiffs

IP owners seeking to obtain injunctive relief now have to put as much effort into preparing for pre-litigation as they do for the pre-trial. This involves establishing a comprehensive evidentiary record before going to court, including copies of the trademark registration extracts, user evidence (including invoices and expenditure on advertising), evidence of the defendant’s particular misuses of the trademark and a frank appraisal of the defendant’s potential defences. Plaintiff has now lost his/her tactical choice of selective disclosure as it now subjects him/her to the possibility of discharge of the injunction and adverse cost orders.

For Defendants

Defendants are given a fewer number of days to reply to the fast-track injunction notices, but a more extensive doctrinal toolbox. Increasingly, the prima facie case can be challenged on the basis of evidence that the defendant has also used the standard, that the plaintiff delayed, or that such losses can be quantified. Another way for defendants to challenge the balance of convenience is to prove that there are downstream consequences to include loss of jobs, disruption of the supply chain, or downstream third party loss.

Emerging Trends

There are three trends to note. First, there is a growing reluctance on the part of courts to take AI-generated or AI-assisted evidence (including reports on infringement, obtained via automated web-scraping) on faith, with a need to authenticate it before accepting. Secondly, it is an issue of jurisdiction complexity as courts in India have refused to issue an injunction against foreign-based defendants where there is no evidence of targeted Indian markets when the matter relates to digital IP infringement. Thirdly, the commercial court mediation requirement in the Commercial Courts Act is introducing a new procedure, whereby the courts in some instances may adjourn an urgent application to invite the parties to try mediation proceedings before granting interim relief.

Conclusion

The law relating to IP injunctions in India remains unchanged. It is the rigour and evidentiary emphasis placed on each arm of the test by courts in the context of the fast-track that has changed. The message coming out of the Commercial Divisions is the same one that’s coming out of the IPD: speed is no substitute for any lack of depth. To obtain immediate IP relief in 2026, a plaintiff is required to specify and candidly prove that the plaintiff has a real right, there is a real harm or a foreseeable harm, and that monetary damages will not provide an adequate remedy.

Policy-wise, this change is justifiable. There have been several cases in the history of Indian IP litigation, where injunctions were issued on flimsy grounds and used as market foreclosure devices. Repeated application of a more demanding burden of proof for the plaintiff restores the balance without compromising the plaintiff’s right to expedient relief. The difficulty for courts will be to balance the need for the injunction to be granted without delay and the need for it to be as precise as possible, while not letting the better become the enemy of the necessary.

Author:-Saumyaa Upadhyay, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or   IP & Legal Filing.

Endnotes

1. Dalpat Kumar v. Prahlad Singh, (1992) 1 S.C.C. 719 (India).
2. Wander Ltd. v. Antox India P. Ltd., 1990 Supp. (1) S.C.C. 727 (India).
3. Code of Civil Procedure, 1908, O. XXXIX, rr. 1–2.
4. Trade Marks Act, 1999, § 135.
5. Copyright Act, 1957, § 55.
6. Commercial Courts Act, 2015 (as amended by Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2018, No. 28 of 2018).
7. Delhi High Court Intellectual Property Division Rules, 2022 (effective Feb. 7, 2022).
8. Hindustan Unilever Ltd. v. Emami Ltd., 2010 (42) P.T.C. 297 (Bom.) (India).
9. Laxmikant V. Patel v. Chetanbhai Shah, (2002) 3 S.C.C. 65,  10 (India).
10. Kent RO Systems Ltd. v. Amit Kotak, 2017 (69) P.T.C. 375 (Del.) (India).
11. Gujarat Bottling Co. Ltd. v. Coca Cola Co., (1995) 5 S.C.C. 545 (India).
12. Midas Hygiene Industries Pvt. Ltd. v. Sudhir Bhatia, (2004) 3 S.C.C. 90,  6 (India).
13. Steer Engineering Pvt. Ltd. v. Glance Digital Experience Pvt. Ltd., CS(COMM) 280/2023 (Del. H.C. 2023) (India).

Bibliography

• Statutes and Rules
• Code of Civil Procedure, 1908, O. XXXIX, rr. 1–3.
• Commercial Courts Act, No. 4 of 2016 (as amended by Act 28 of 2018).
• Copyright Act, 1957, § 55.
• Delhi High Court Intellectual Property Division Rules, 2022.
• Trade Marks Act, 1999, § 135.

Cases

1. Dalpat Kumar v. Prahlad Singh, (1992) 1 S.C.C. 719 (India).
2. Gujarat Bottling Co. Ltd. v. Coca Cola Co., (1995) 5 S.C.C. 545 (India).
3. Hindustan Unilever Ltd. v. Emami Ltd., 2010 (42) P.T.C. 297 (Bom.) (India).
4. Kent RO Systems Ltd. v. Amit Kotak, 2017 (69) P.T.C. 375 (Del.) (India).
5. Laxmikant V. Patel v. Chetanbhai Shah, (2002) 3 S.C.C. 65 (India).
6. Midas Hygiene Industries Pvt. Ltd. v. Sudhir Bhatia, (2004) 3 S.C.C. 90 (India).
7. Steer Engineering Pvt. Ltd. v. Glance Digital Experience Pvt. Ltd., CS(COMM) 280/2023 (Del. H.C. 2023) (India)
8. Wander Ltd. v. Antox India P. Ltd., 1990 Supp. (1) S.C.C. 727 (India).

Secondary Sources

• Ashwini Kumar Bansal, Law of Injunctions (5th ed., Universal Law Publishing 2019).
• Pravin Anand & Aditya Gupta, Interim Injunctions in Indian IP Litigation: The Evolving Threshold, 51 Indian J. Intell. Prop. L. 1 (2023).
• Ananth Padmanabhan, Intellectual Property Rights: Infringement and Remedies (LexisNexis 2012).