Defendant May Cross-Examine on Brand Name Even Without Written Statement on Record, Supreme Court Holds
A Division Bench of Justices J. B. Pardiwala and K. Vinod Chandran held that a defendant in a trademark suit retains the right to cross-examine the plaintiff on brand usage, even absent a written statement on record.
The Supreme Court on 7 August 2026 allowed an appeal by a defendant in a trademark and trade-dress infringement suit, reversing a High Court order that had expunged a cross-examination question from the record solely because the defendant's written statement had not been taken on record. The Court held that where a plaintiff affirmatively asserts trademark infringement, a defendant is entitled to question the plaintiff on the documents that support the duration of the claimed brand usage, regardless of whether a written statement is on record. The decision directly affects the conduct of trials where written statements are delayed or excluded, and restores a question directed at how long the plaintiff had used the brand name “BABA”.
How the Dispute Reached the Court
The respondent, Dharampal Premchand Limited, filed a civil suit seeking, among other reliefs, a permanent injunction restraining the appellant from infringing its trade-dress, a declaration that two trademarks were its exclusive marks within the meaning of Section 2(1)(zg) read with Section 11(6) of the Trade Marks Act, 1999, and damages. The plaintiff's affidavit accompanying the prayer for injunction specifically alleged that the defendant was using the plaintiff's brand name with similar packaging and trade-dress, and was infringing the plaintiff's registered copyright and trademark.
During cross-examination of the plaintiff, the defendant put this question: “Is it correct that you have no document to show that since when mark BABA is being used?” The High Court treated this as a purely factual question beyond the permissible scope of cross-examination and, relying on the fact that the defendant's written statement was not on record, expunged the question. The defendant — the appellant before the Supreme Court — challenged that order.
The Core Question Before the Court
The short question the Supreme Court identified was whether the defendant was entitled to put a question concerning the brand name asserted by the plaintiff, infringement of which was the very foundation of the plaintiff's claim for damages. The High Court's answer had been no, grounded in the position that the absent written statement left the defendant with no pleaded case to support such questioning.
What the Court Held
The Court disagreed squarely with the High Court's reasoning. It held that when a plaintiff affirmatively asserts trademark infringement, even if the written statement is not on record, the defendant is entitled to put a question that queries the plaintiff on the document, to establish since when the brand name was used by the plaintiff.
The reasoning turns on a straightforward point: the question was not an attempt to introduce the defendant's own case through the back door of cross-examination. It was directed at testing the evidentiary basis of the plaintiff's own claim — namely, the duration and exclusivity of use of the mark. The plaintiff's affidavit had placed brand name usage and trade-dress identity squarely in issue. A defendant is entitled to probe precisely those assertions, and the absence of a written statement does not extinguish that entitlement.
The Court made clear it expressed no view on the merits of the underlying trademark dispute. Both parties remain free to agitate their respective contentions at trial.
Order
The Supreme Court reversed the impugned order of the High Court. It directed that the trial proceed after recalling the plaintiff and recording his answer to the expunged question. The appeal was allowed. Pending applications, if any, were disposed of.