Recently, the Delhi High Court, in Niva Bupa v. Vishal Rattewal imposed Re. 1 in notional costs after finding the plaintiffs’ suit to be a “misuse” of the IPD’s special jurisdiction. In this post, Aryan Agrawal examines whether the failure of a trademark infringement claim is sufficient to constitute such misuse, and whether the Court adequately considered the IPD Rules’ express inclusion of disparagement within its remit. Aryan is an advocate practising before the Delhi High Court and an Associate at Sahadeva Law Chambers, New Delhi. His interests lie in intellectual property and pharmaceutical law. He is a graduate of Jindal Global Law School and attended the inaugural SpicyIP Summer School. The views expressed here are those of the author alone.
Can You Trademark Your Way Out of Bad PR? Delhi HC Fines Niva Bupa Re. 1 for Trying
By Aryan Agrawal
At 50 paise a printout, ₹1 buys exactly two sheets of paper. Yet, in the courtroom, this humble coin carries an entirely different weight. In a recent order, the Delhi High Court ordered the plaintiffs (Niva Bupa and its advocate) to pay one Rupee in notional costs to the defendant (an influencer), labelling the company’s resort to the Delhi HC’s Intellectual Property Division (IPD) a “misuse.”
Beyond its literal purchasing power, what exactly does this rupee buy: compensation? Deterrence for future litigants? Or simply a judicial rap on the knuckles? Does paying it amount to an acknowledgment of wrongdoing? The more important point, however, is the reason for this decision. The Court first held that the suit did not involve trademark infringement and was therefore not maintainable before the IPD. After the plaintiffs sought leave to withdraw, it separately characterised the filing as a “misuse” of the IPD’s special jurisdiction. But the IPD Rules expressly include matters relating to disparagement. If the Section 29 claim failed, was that enough to justify the finding of misuse? This post explores whether a failed Section 29 claim automatically constitutes “misuse,” and how the IPD Rules regarding disparagement should factor into this conclusion.
Facts of the present case:
The dispute traces back to a District Consumer Disputes Redressal Commission (DCDRC) order (9 October 2024) and a subsequent Insurance Regulatory and Development Authority of India (IRDAI) order (19 August 2026) barring Niva Bupa from opening a new place of business for six months. An influencer (defendant no. 1) posted allegedly offensive content about this on social media. Niva Bupa responded by suing for trademark infringement. Niva Bupa argued that the influencer’s posts infringed its registered mark under Section 29(4)(c), read with Section 29(8), by allegedly disparaging its services to gain views and traction on social media. Curiously, the company’s advocate also joined the suit as Plaintiff No. 2.
In its order of 21 September 2026, the single judge bench of the High Court comprising of Justice A. J. Bhambhani deflated the trademark claim. The HC noted the influencer had no connection to insurance business. Therefore, merely taking the company’s name in a video was not use “in the course of trade” under Section 29 of the Trade Marks Act. The suit was declared unmaintainable before the IPD. Crucially, the Court held the case to be “misuse of the special jurisdiction,” allowing withdrawal, with liberty to file afresh, but only upon payment of Re. 1 in notional costs.
A quick caveat before proceeding: I could not locate the plaint in the public domain, so we can’t say exactly what else was pleaded. Naturally, the Court made no determinations regarding the truth of the statements or any underlying defamation claims.
The Section 29 Blind Spot: Right Outcome, Truncated Reasoning:
So why did the trademark claim fail so spectacularly? It comes down to a basic principle: a reference to a mark is not, by itself, infringement. If someone criticises your brand, they are talking about you. They aren’t trading as you.
Indian courts have taken this view consistently, at least at the interim stage. Tata Sons v. Greenpeace (DHC; 2011) drew the line. Using a mark as the object of criticism does not, by itself, establish infringement; the question is whether the use meets the statutory requirements. More recently, in San Nutrition v. Arpit Mangal (DHC; 2025), the Delhi HC refused interim relief, on trademark as well as defamation grounds, against influencers whose reviews rested on lab reports. However, it is noteworthy that trademark law protects against more than just confusion: §.29(4)(c) also protects marks with a reputation in India. It is not a shield to silence critics.
In the present case, the plaintiffs shot themselves in the foot early on. The plaintiffs confirmed that the influencer had no connection to the insurance business. They argued he disparaged them to gain views and traction.
That admission was decisive. Justice Bhambhani used it in paragraph 11 to shut the door. One caveat: s.29(4)(b) itself contemplates dissimilar goods, and Jigra (below) found a film in a different field to be in the course of trade. The sharper question is whether the influencer used the mark in the course of his own trade, which the Court never tested.
The outcome is defensible. The judicial route is curious. Despite treading heavily on their territory, the order cites neither Greenpeace nor San Nutrition, nor the Complan order (Zydus v. Prashant Desai (DHC; 2024)), where an influencer’s video was held prima facie disparaging (discussed here by Manya Gupta). In paragraph 7, Niva Bupa expressly pinned its case on Section 29(4)(c) read with Section 29(8) of the Trade Marks Act. Yet when the Court reproduces Section 29 in paragraph 10, it reproduces sub-sections (3), (7), (8) and (9) only as asterisks, leaving the provision the plaintiffs expressly relied on without separate analysis.
The Elephant in the IPD: What Happened to Rule 2(i)?
The Court explicitly recorded Niva Bupa’s reliance on the Delhi High Court IPD Rules, 2022. Specifically, the plaintiffs pointed to Rule 2(i).
Under Rule 2(i)(ii), IPR subject matter encompasses “matters relating to passing off, acts of unfair competition, disparagement, comparative advertising etc.” Rule 2(l)(ii) extends the IPD’s jurisdiction to “[a]ll suits” in which IPR subject matter is involved, whether under the statutes or under common law.
Counsel argued disparagement, though the order records it only as a route to infringement. The Rules clearly recognise disparagement. Yet the Court summarily dumped the suit as unmaintainable simply because it did not involve “infringement”. By doing so, the order posed the question in the Rules’ own terms but answered it only through §.29, collapsing the IPD’s broad mandate into a blunt trademark infringement test.
A proper analysis requires a three-way reading.
First, a failed §.29 claim does not automatically kill IPD jurisdiction. The Rules expressly extend the IPD’s remit to common-law rights and commercial wrongs beyond statutory infringement claims. Where an independent claim within Rule 2(i) is properly pleaded, the court must still ask whether it independently brings the dispute within the IPD’s remit; the order does not say whether any such claim was pleaded.
Second, does “disparagement” in Rule 2(i)(ii) extend to any critical speech, or does it demand an IP nexus? The answer lies in basic statutory interpretation: noscitur a sociis (the meaning of a word is understood by reference to the words surrounding it). Read alongside passing off, unfair competition and comparative advertising, “disparagement” in Rule 2(i)(ii) is best understood as commercial disparagement or trade libel, not every ordinary corporate defamation claim in which a brand happens to be mentioned.
Third, on the facts recorded, the commercial nexus was not established. Not being in the insurance business, and allegedly seeking views and traction by disparaging Niva Bupa, does not by itself make out infringement or an independent disparagement claim. But that does not settle whether the posts were part of his own commercial activity; the order does not analyse it.
On the facts recorded, the dispute may have not belonged to IPD. But that should follow from applying Rule 2 to the pleaded cause of action, not from the §.29 failure alone.
Unpacking “Misuse”: Where Weak Pleading Meets Abuse of Process:
The “misuse” label appears almost as an afterthought. After the order was dictated, the plaintiffs sought leave to withdraw the suit. In a brief addendum, the Court declared that filing and pressing the suit amounted to a “misuse of the special jurisdiction”. Re. 1 in notional costs followed, as a condition of permitting withdrawal.
But an unsuccessful or misconceived claim is not automatically an abuse of process. Niva Bupa appears to have overreached in framing the criticism as trademark infringement. Yet, without unpacking the IPD Rules, the Court leaves the boundary between a weak trademark claim and a vexatious suit completely blurred.
If the goal is to deter misuse of the IPD, a judicial rap on the knuckles requires more than notional costs. In my view, a finding of misuse calls for a clear explanation of exactly how the forum was misused, not just a one-sentence declaration tacked onto a withdrawal order.
Drawing the Line: Commercial Rivalry vs. Public Accountability:
For future plaintiffs, I would suggest a sorting test. First, identify the core cause of action and trace each plaintiff’s actual interest in the trademark. Second, identify the applicable subsection of §.29 and test each of its requirements, including whether the use was in the course of trade. Third, check whether any independent common-law claim is actually pleaded. Finally, apply Rule 2 to ensure the grievance possesses a true commercial nexus before approaching the IPD.
The recent Jigra judgment (MSF v. Dharma Productions; DHC; 2026) shows how a commercial context can complicate this concept of “use”. The Court treated the film’s use of the mark as use in the course of trade, given its commercial exploitation. It nonetheless refused an interim injunction, though it ordered an acknowledgement at the start of the film.
Meanwhile, the recent Inter IKEA Judgment (2026) by CJEU is a useful comparative reference, though not binding in India. The Court held that freedom of expression may amount to “due cause” for using a reputed mark, but only after case-specific balancing. A defendant is unlikely to establish due cause by free riding on a mark with a reputation for an unrelated political campaign. A defendant may, however, have due cause where the use genuinely criticises the brand or its conduct. Trademark rights are not a blanket gag order against public accountability.
So, what does the rupee buy? Mostly a missed explanation: a failed §.29 claim is not automatically a misuse of the IPD, and a disparagement allegation is not automatically an IP dispute. The next court to face such a suit should say why, with the Rules in hand, rather than leave litigants to read the answer into a single rupee.