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When Silence Speaks: Can ‘Non-Use’ and ‘Digital Invisibility’ Kill a Trademark in the Age of Online Commerce?
In 2025, a strange phenomenon seems to follow India’s trademark register everywhere: there are thousands of registered trademarks that exist only on paper. They have registration certificates, occupy classes, and in theory, have exclusive rights, but consumers looking for them online will not find them. No website shows them. No market listing is there to display their goods. No social media account is there to confirm their existence. These marks are in a kind of legal twilight zone where protection is given by the law but there is no market reality.
This paradox poses a fundamental question to modern trademark law: if consumers are not able to find a brand through digital means which are the most used for commercial discovery, then does the trademark really exist in commerce? Even more, if a brand is completely invisible online should it be considered as a new type of non-use that can be actionable under Indian trademark law?
Conventional trademark doctrine as embodied in Section 47 of the Trade Marks Act, 1999, sees non-use as the absence of a genuine commercial activity for five consecutive years. The provision is from a time when commerce was visible through retail shelves, printed adverts, and product packaging[i]. Today, however, people start their buying journeys on search engines and app stores rather than in physical markets. The gap between statutory assumptions and commercial realities is likely to change trademark law from a means of consumer protection into one of facilitating strategic hoarding.
Understanding Non-Use: The Doctrinal Foundation
According to Section 47 of the Trade Marks Act, the removal of a registered trademark from the register can be demanded by the owner or a third party through an application to the Registrar or the Appellate Board if the trademark has not been used. [ii]More precisely, Section 47(1)(b) authorizes deregistration in the case where a typical non-use period of five years or more has elapsed, counting back from up to three months prior to the date of filing the cancellation application, during which a trademark has not been used in a bona fide manner for the goods or services for which it is registered.[iii]
The provision rests on two essential ideas. Firstly, “bona fide use” implies that the trademark should be put to real commercial use and not be mere token or symbolic gestures that are aimed at keeping the registration alive. In several decisions, courts have underlined that the use must be “in relation to” the particular goods or services, thus, the real intention of the parties is to be recognized and not just formal compliance. [iv]Secondly, the standard of proof is not static but moves between the parties: the party requesting the cancellation must make a prima facie case of non-use thus the obligation then moves to the trademark owner to prove actual use or, if not, that there are special circumstances justifying the lack of use according to Section 47(3). [v]
Indian case law has evolved to reflect very flexible criteria for the evaluation of usage. In contrast to those jurisdictions which set a strict commercial threshold, Indian courts accept that usage patterns may differ between different sectors. The sporadic nature of the sales of some kinds of expensive industrial equipment cannot be equated with the sales of some mass-market consumer goods. If invoices, commercials, and photographs of goods serve as evidence of bona fide market participation, then even small numbers of documents can be enough[vi].
Yet, these doctrinal standards were developed at a time when trade was still mainly of a tangible and local nature. This is the reason why physical invoices, samples of packaging, and print advertisements were considered as natural proof since business would naturally produce such materials. The issue that modern trademark law has to deal with is whether these evidentiary propositions are still plausible when trade has moved to such platforms where the presence or absence of something is binary and can be checked instantly.
The Digital Transformation of Commercial Discovery
The consumer is the central player; the consumers themselves have changed their behavior in a radical way; they are the main agents of the change. The world’s most populous democracy’s e-commerce sector leapt from $70 billion in 2022 to an anticipated value of $325 billion by 2030 at a rate of 27% CAGR. This boom is not just a story of transactions but signals a deep change in consumer behavior.[vii]
The modern path to purchase is through digital means. Consumers use internet search to find products; are informed by marketplaces; get reassurance from social networks and finalize their purchase by mobile apps or websites. Direct-to-consumer brands have no other distribution channels apart from digital. Platform-exclusive sellers never establish physical retail presence. Even traditional players are aware that online presence is a prerequisite for business success; the saying “if you’re not online, you’re not there” is an accurate depiction of the market.
The change challenges the legal system regulating trademarks in a very fundamental way. In the past, being present at the marketplace was synonymous with physically distributing products that could be found on shelves, advertisements in newspapers, and signs at retail stores. The concept of presence has been replaced with algorithmic discoverability. Brands are fighting for search rankings, marketplace placements, and social media engagement metrics. Customers are now getting to know a brand via its website or app interface or digital marketing campaign and not the brand’s physical packaging or store.
As a result, the difference between legal registration and market existence has become significantly larger. A trademark registered a decade ago may still be technically valid with renewals paid on time but it has no impact in the market. Consumers searching for relevant products or services would not come across it. There is no online trail that would indicate its commercial use. Yet the registration is still there which means that it can be blocking the path for those who are legitimate businesses wanting to use similar marks or forcing costly coexistence negotiations.
Digital Invisibility as Actionable Non-Use
The modern way of buying is mainly online. Consumers find products through search engines and marketplaces, look for approval on social platforms, and make transactions through websites or mobile applications. For a lot of businesses, especially direct-to-consumer and platform-exclusive sellers, digital channels are what define market participation.
This change is challenging trademark law from a very deep level. Market presence which used to be closely associated with physical distribution and retail visibility is now judged by online discoverability through search rankings, platform placement, and digital engagement. Consumers mainly get brands through digital interfaces rather than physical marketplaces. The difference between trademark registration and commercial reality has thus become larger. A mark may be left on the register without any significant digital or commercial presence. Such registrations do not correspond to consumer recognition but still hinder businesses that are doing the right thing, thus there is a gap between legal protection and actual market use.
On the one hand, several recognize that evidence standards should change alongside business practices. The “genuine use” norm in the European Union Trademark Law takes into account the market character in determining use sufficiency.[viii] Courts are of the opinion that requirements of proof should be adjusted to reflect the way businesses work in particular sectors. Being the first to operate digitally, open-door markets such as software, online services, and e-commerce retail have naturally moved digital presence into the most normal and expected form of commercial activity.
The Indian legal system is equipped to respond to that change. The notion “bona fide use in the course of trade” as mentioned in Section 47 of the Act is in fact a sign that the matter at hand should be dealt with less strictly and more on a case-by-case basis. The courts can decide whether the use is real and thus supports the source function of the trademark or if it is just a technical formality. The presence of digital evidence, or in the case of its being obviously absent, should be rendering this judgment.
Evidentiary Frameworks for Digital Use Assessment
When digital visibility is considered a factor of trademark use, it is very important to have clear and proportionate evidentiary standards. Various kinds of digital evidence may be taken into account in cancellation proceedings. Operational websites that show the mark in relation to real goods or services may, therefore, confirm the use, and this can be further strengthened by support from the archived records like Wayback Machine captures which deliver a neutral, time-stamped proof. On the other hand, placeholder or non-commercial pages should not be allowed to suffice.
Marketplace listings and transactions linked to e-commerce provide very convincing third-party evidence of actual use. This is further confirmed by customer reviews, seller ratings, and transaction data. Presence on social media is not a requirement; however, accounts that use the mark for consumer outreach or product communication may be considered as an indication of market participation, which can be confirmed through the number of archived posts and engagement metrics.
Being visible in the search and conducting digital advertising may also be use claims’ supporting factors. Regular organic search results can be seen as market deployment, whereas recorded advertising reflects consumer association-building efforts, although paid promotion should not be decisive for the most part. All evidence, however, has to be considered from a contextual point of view: a B2B company may not have any activity on social media, while a complete digital presence absence for a consumer-facing brand is a very strong indication of non-use.
Comparative Perspectives: Global Approaches to Genuine Use
International trademark frameworks are quite helpful in understanding how to evaluate the use of trademarks in digital settings.[ix] The European Union’s doctrine of genuine use specifies that trademarks should be used in a way that is in line with their main function of essentially retaining or gaining market share. The practice of the EUIPO clearly recognises website evidence, online sales records, and digital advertising as material proof of use.[x]
Most importantly, EU law looks at the use of the market based on the realities of the market. It is generally expected that courts will require digital evidence if goods and services are to be traded online as is the case with software, digital services, and consumer products. The lack of such evidence in digitally native sectors may be interpreted as a lack of genuine use while in sectors such as industrial or specialised goods, the absence may not pose a problem.
At the same time, US trademark law is not very different in this respect. The “use in commerce” condition allows websites and online listings to be regarded as the main pieces of evidence.[xi] USPTO instructions consider the website screenshots that display the goods available for sale as proper specimens, whereas the advertisements of services online are enough to be service marks. [xii]
Indeed, across different legal systems, the common principle is that the local standards for the presentation of trademark use should be consistent with the way trade is conducted in reality.[xiii]
Policy Implications: Register Integrity and Market Access
The conflicts that have arisen from individual disputes, have now become concerns relating to systemic issues of register integrity and market competition. India filed more than 540,000 trademark applications in 2024, and was ranked third worldwide.[xiv] Increased filings have been considered a positive sign of IP awareness, but to a large extent, they have also been responsible for congestion at the registers and an increase in the workload of the administrative offices. A crowded register means slow examination, difficult clearance searches, higher legal costs, and the possibility of unused marks that can block the valuable brand space without giving any contribution to commerce.
Start-ups and small businesses are the ones that are most affected by this situation because they do not have the capacity to withstand the delays, negotiations, and litigations that large corporations are able to manage. Non-active trademarks distort the market by forcing weaker branding choices and the creation of infringement risks that have no relation to genuine competition. Consumer welfare is not left out either. Trademarks are there to reduce search costs and to be an easy source of identification, but registers filled with unused marks from different trademarks lose this feature and, at the same time, they bring along administrative and competitive costs that are unnecessary for society.
Conclusion: When Silence Should No Longer Speak
Trademark law assumes that the marks are visible. Marks are for seeing, recognising, and relying on by consumers. Today, 2025, that visibility is mainly digital. Consumer discovery and brand association now happen through search engines, online marketplaces, and digital platforms, thus calling for a corresponding change in the understanding of the trademark “use” concept. A trademark that is digitally invisible, unsearchable, not present in marketplaces, and unknown to online consumers, is not able to perform its core function as a source identifier. The protection of such marks might lead to the transformation of trademark law from a consumer-protection regime into a tool of strategic hoarding and anticompetitive exclusion.
Therefore, a brand’s digital presence or lack thereof should be considered as pertinent evidence under Section 47 of the Trade Marks Act, 1999. If a mark is completely invisible to consumers in digitally driven markets, then such absence should be considered as non-use unless convincingly explained. Registrants asserting bona fide use need to show that they have a real market presence through the channels that modern consumers actually use. This change does not require any legislative changes. The idea of bona fide use in the course of trade is naturally contextual and has always depended on the commercial reality.
In the digital world, being present means being discoverable. Silence should no longer be considered as a sign of trademark protection in an online marketplace. Marks that only exist on the register, without being integrated into the market reality, deserve to be questioned rather than trusted. Re-aligning trademark protection with real digital presence not only restores its consumer-centric purpose but also ensures that exclusivity is the reward for participation in the market, and not for mere paperwork.
Author: Prince Lucky Jain, in case of any queries please contact/write back to us via email to [email protected] or at IIPRD.
[i] The Trade Marks Act, 1999, § 47, No. 47 of 1999, INDIA CODE (1999), https://www.indiacode.nic.in.
[ii] Id. § 47(1).
[iii] Id. § 47(1)(b).
[iv] Non-Use Cancellation Action under the Indian Trademarks Act: An Overview of Provisions and Procedure, CHAMBERS & PARTNERS (last visited Dec. 15, 2025), https://chambers.com/articles/non-use-cancellation-action-under-the-indian-trademarks-act-an-overview-of-provisions-and-procedure.
[v] Removal of Trademark from Trademark Register Due to Non-Use, KHURANA & KHURANA (July 31, 2020), https://www.khuranaandkhurana.com/2020/07/31/removal-of-trademark-from-trademark-register-due-to-non-use/.
[vi] Procedure for Removal of Trademark Under Section 47 of the Trademark Act, IPLEADERS (Feb. 2, 2025), https://blog.ipleaders.in/procedure-for-removal-of-trademark-under-section-47-of-the-trademark-act/.
[vii] Trademark Infringement in E-Commerce in India: Challenges in Digital Era, KHURANA & KHURANA (Apr. 16, 2024), https://www.khuranaandkhurana.com/2024/04/16/trademark-infringement-in-e-commerce-in-india-challenges-in-digital-era/.
[viii] Genuine Use and Its Requirements: Study of Recent EU Case Law, LEXOLOGY (Nov. 6, 2020), https://www.lexology.com/library/detail.aspx?g=52664b36-a3be-45bb-9 374-7b88af54ce61.
[ix] Overview of Genuine Use Assessment in the European Union, LEXOLOGY (May 30, 2022), https://www.lexology.com/library/detail.aspx?g=6a706906-9085-4fe1-9d55-51fc026ca89c.
[x] European Trademarks and the Question of Genuine Use, NOVAGRAAF (June 20, 2018), https://www.novagraaf.com/en/insights/european-trademarks-and-question-genuine-use.
[xi] Application Filing Basis, USPTO, https://www.uspto.gov/trademarks/basics/application-filing-basis (last visited Dec. 15, 2025).
[xii] Specimens, USPTO, https://www.uspto.gov/trademarks/laws/specimen-refusal-and-how-overcome-refusal (last visited Dec. 15, 2025).
[xiii] lient Alert: “Use” of a Mark in the U.S.A., VORYS (last visited Dec. 15, 2025), https://www.vorys.com/publication-i-Client-Alert-i-Use-of-a-Mark-in-the-U-S-A.
[xiv] Trademark Registration Trends in India 2025, EBIZFILING (June 23, 2025), https://ebizfiling.com/blog/trademark-registration-trends-india-2025/
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