TikTok Denied 'Famous Brand' Status in India: Court Says Government Ban Matters More Than Popularity

The Hon'ble High Court of Judicature at Bombay in TikTok Limited Faheem Ahmad Constituted Attorney of TikTok Limited vs The Registrar of Trade Marks Mumbai & Anr. [COMMERCIAL MISCELLANEOUS PETITION NO. 10 OF 2024, dated June 10, 2025] held that the ban imposed by the Government of India on TikTok application under the Information Technology Act constitutes a relevant factor that can be considered by the Registrar while refusing inclusion of the trademark TikTok in the list of well-known marks under Rule 124 of the Trade Mark Rules 2017, even though the factors listed in Section 11(6) of the Trade Marks Act are not exhaustive in nature.

FACTS OF THE CASE

The Petitioner, TikTok Limited, is a technology company operating a range of content platforms, including a platform/mobile application bearing the mark TikTok. It is undisputed that TikTok is a registered trade mark in India. TikTok is a social media video application for creating and sharing short talent videos, where videos are allowed to be created by users on short music and lip-syncing videos for uploading on the application.

The application was launched worldwide in the year 2017 and employs Artificial Intelligence to analyze interests and preferences of users through their interaction with the content, displaying a personalized content feed to each user. By the year 2019, the TikTok application was available in 155 markets and in 75 languages. It gained immense popularity and at a point in time, its downloads surpassed those of Facebook, YouTube and Instagram.

While the Petitioner had already obtained registration for its mark TikTok in India, some other applications for registration were pending before the Respondent. In the statement of case placed before the Respondent, the Petitioner staked its claim for inclusion in the list of well known marks in terms of the provisions of the Trade Marks Act. Accordingly, the proceeding under Rule 124 of the Trade Mark Rules for inclusion of the mark TikTok in the list of well known trade marks was initiated.

The Assistant Registrar of Trade Marks, vide order dated October 31, 2023, refused the application filed on behalf of the Petitioner for inclusion of its registered trade mark TikTok in the list of well known marks under Rule 124 of the Trade Mark Rules 2017. The main reason recorded in the impugned order was that the application TikTok was found to be controversial by the Government of India and it stood banned in India, as the Government of India found the said application to be prejudicial to the sovereignty and integrity of India and for other such reasons.

The Petitioner was aggrieved by the refusal of its application for inclusion of the mark TikTok in the list of well known marks and approached the Hon'ble High Court challenging the impugned order, contending that the statutory provisions of the Trade Marks Act, 1999 and Rules framed thereunder were not taken into consideration in a proper perspective by the Respondent while passing the impugned order.

ISSUE

Whether the ban imposed by the Government of India on the TikTok application can be considered as a relevant factor by the Registrar while determining an application for inclusion of the trademark in the list of well-known marks under Section 11(6) of the Trade Marks Act, 1999?

HELD BY THE COURT

The Hon'ble High Court of Judicature at Bombay in COMMERCIAL MISCELLANEOUS PETITION NO. 10 OF 2024 held that:

The Court observed that the impugned order indeed did not refer to Section 11(6) to (9) of the Trade Marks Act and instead referred to Section 9 thereof, which was obviously not relevant for considering the application filed by the Petitioner. However, the Court held that this in itself could not be a ground to set aside the impugned order.

The Court noted that Rule 124 of the Trade Mark Rules, concerning the determination of well known trade mark by the Registrar, specifies in sub-Rule (2) that while determining the trade mark as well known, the Registrar shall take into account the provisions of sub-Sections (6) to (9) of Section 11 of the Trade Marks Act. The Court observed that Section 11(6) of the Trade Marks Act provides that a Registrar shall take into account any fact that he considers relevant for determining a trade mark as a well known trade mark, including facts specified in clauses (i) to (v) of the said sub-Section, and that a bare perusal of the said provision shows that it is not exhaustive in nature.

The Court held that the reasoning adopted in the impugned order did not show reference to the factors indicated in Section 11(6) and (7) of the Trade Marks Act. However, as the factors included in Section 11(6) were not exhaustive in nature, it was crucial that the provision specifies that the Registrar can take into account "any fact which he considers relevant for determining a trade mark as a well known trade mark." The Court observed that the factors included in Clauses (i) to (v) in Section 11(6) were obviously illustrative in nature and not exhaustive.

The Court held that therefore, the Respondent was entitled to take into account a fact which was not mentioned in Clauses (i) to (v) of Section 11(6) of the Trade Marks Act, while considering the application filed under Rule 124 of the Trade Mark Rules, for inclusion of the trade mark in the list of well known marks.

The Court noted that the fact taken into consideration by the Respondent was the ban imposed by the Government of India on the application bearing the trade mark TikTok. The material taken into consideration by the Respondent in the impugned order showed that it referred to the TikTok application being found to be prejudicial to the sovereignty and integrity of India, Defence of India, Security of State and Public Order. The Government of India exercised power under the Information Technology Act and the Rules framed thereunder for imposing such a ban.

The Court observed that the Respondent also found that there was material indicating that the ban imposed on TikTok was also in the backdrop of concerns regarding data privacy of the users and the fact that the servers of the said application TikTok were located in China.

The Respondent also referred to certain instances indicating that pictures of some women and girls downloaded from TikTok were found to be morphed and that there were cases of cyber bullying and sexually explicit content.

The Court held that the material taken into consideration by the Respondent could be said to be a relevant factor and it was covered under the expression under Section 11(6) of the Trade Marks Act, which specifies that the Registrar can take into account any fact that he considers as relevant. The Court opined that the banning of the application of the Petitioner i.e. TikTok by the Government of India, while exercising power under the Information Technology Act and Rules, was indeed a relevant fact taken into consideration by the Registrar.

The Court noted that it was admitted on behalf of the Petitioner that the ban still operated and that merely because the ban on certain other applications had been lifted could not be a ground for the Petitioner to claim that the impugned order was rendered erroneous. The Court held that the Constitution of India would require all concerned Authorities to apply the law within the broad framework indicated in the Constitution of India, and that the reasons why the application bearing the trade mark TikTok had been banned pertained to the sovereignty and integrity of India, its Defence and Public Order, which were serious matters that could not be ignored.

The Court concluded that it was obvious that due to the ban imposed by the Government of India, the TikTok application bearing the trade mark could not be used in India. While this would be irrelevant for determining the question of inclusion of the trade mark in the list of well known marks, since the said mark was already a registered trade mark in India, it did enjoy all statutory protection available under the Trade Marks Act. The Court held that inclusion in the list of well known marks obviously gave added protection to a mark, but in light of the fact that the application TikTok itself had been banned in India, which till date admittedly had not been set aside by any Competent Court or Authority, no error could be attributed to the Respondent in passing the impugned order while refusing the application.

The Court dismissed the petition.

RELEVANT SECTIONS

Section 11(6) of the Trade Marks Act, 1999 - "The Registrar shall, while determining whether a trade mark is a well-known trade mark, take into account any fact which he considers relevant for determining a trade mark as a well-known trade mark including— (i) the knowledge or recognition of that trade mark in the relevant section of the public including knowledge in India obtained as a result of promotion of the trade mark; (ii) the duration, extent and geographical area of any use of that trade mark; (iii) the duration, extent and geographical area of any promotion of the trade mark, including advertising or publicity and presentation, at fairs or exhibition of the goods or services to which the trade mark applies; (iv) the duration and geographical area of any registration of or any application for registration of that trade mark under this Act to the extent that they reflect the use or recognition of the trade mark; (v) the record of successful enforcement of the rights in that trade mark, in particular the extent to which the trade mark has been recognised as a well-known trade mark by any court or Registrar under that record."

Section 11(7) of the Trade Marks Act, 1999 - "The Registrar shall, while determining as to whether a trade mark is known or recognised in a relevant section of the public for the purposes of sub-section (6), take into account— (i) the number of actual or potential consumers of the goods or services; (ii) the number of persons involved in the channels of distribution of the goods or services; (iii) the business circles dealing with the goods or services, to which that trade mark applies."

Section 11(8) of the Trade Marks Act, 1999 - "Where a trade mark has been determined to be well known in at least one relevant section of the public in India by any court or Registrar, the Registrar shall consider that trade mark as a well-known trade mark for registration under this Act."

Section 11(9) of the Trade Marks Act, 1999 - "The Registrar shall not require as a condition, for determining whether a trade mark is a well-known trade mark, any of the following, namely:— (i) that the trade mark has been used in India; (ii) that the trade mark has been registered; (iii) that the application for registration of the trade mark has been filed in India; (iv) that the trade mark— (a) is well-known in; or (b) has been registered in; or (c) in respect of which an application for registration has been filed in, any jurisdiction other than India, or (v) that the trade mark is well-known to the public at large in India."

Rule 124 of the Trade Mark Rules, 2017 - Concerning the determination of well known trade mark by the Registrar, specifies in sub-Rule (2) that while determining the trade mark as well known, the Registrar shall take into account the provisions of sub-Sections (6) to (9) of Section 11 of the Trade Marks Act.

Information Technology Act and Rules - Under which the Government of India exercised power to ban the TikTok application.