Transcript Slide 1

Checking whether the domain name is available is not
enough.
There are laws that governs the name of companies in our
country – company laws and IP law.
Violating these laws can be very costly.
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You have to get the name
registered
 With Registrar of Companies before you incorporate
 With Trademark registrar, before or after starting
business
 Changing name midway is very costly
 Since all registration procedure is becoming online, it
is easy now to verify whether the name can be adopted
 I shall teach you how right now – you may want to note
down some details
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Ready with notebook and pen?
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While registering company or LLP…
 The second step is to register the name of the
proposed company
 You need to follow Companies (Name Availability)
Rules, 2011
 What do these rules say?
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 You need to provide on the e-form no less than six different
names in order of preference
 The names should be indicative of the main objects of the
company
 Under the new rules, before applying for registration of a
company, you are required to search on the MCA website to be
sure that the proposed name is unique before applying.
 You
also
need
to
do
a
trademark
<http://124.124.193.236/tmrpublicsearch/tmsearch.aspx>
search
 At this point you also need to identify the classes in which your
services or products belong. Link here to do that.
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Next step – is the name
undesirable?
 Section
20 of the Companies Act,
1956 states that no company should be
registered with an undesirable name.
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A name is considered to be
undesirable if…
…it is identical with or too nearly resembling
with name of a company in existence or a
registered trade-mark or a trade mark which
is subject of an application for registration
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What you can not do to
differentiate…
 Names are not distinguished with prefixes/suffixes, tense changes or
adding words like ‘The’ or ‘and’ or ‘co’ or ‘industries’ which are generic.
Names kept by adding such prefixes or so to already existing name will
be deemed as identical. The keyword(s) in the name must be
substantially different.
 Even a different spelling of word does not work as long as the sound is
the same. If a there is a company named Intelligent Pvt Ltd, you can
not name your new company Intelizent Pvt Ltd or The Intelizent Pvt
Ltd.
 Using different phonetic spellings or spelling variations or hindi
translations does not distinguish one name from another.
 Addition of words to a name used by another company does not
distinguish one name from other
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Following can be disregarded when
considering whether the proposed name is
similar to the already existing name:
 The words Private, Pvt, Pvt., (P), Limited, Ltd, Ltd., LLP, Limited
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Liability Partnership;
The words appearing at the end of the names – company, and
company, co., co,corporation, corp, corpn, corp.;
The plural version of any of the words appearing in the name;
The type and case of letters, spacing between letters and
punctuation marks;
Joining words together or separating the words does not make
the name distinguishable
The use of a different tense or number of the same meaning (eg
Chaar & Four or 3 & three)
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 The addition of an internet related designation, such as
.COM, .NET, .EDU,.GOV, .ORG, .IN. even if “.” Is written as
“dot”
The following are permissible provided no objection by way
of Board resolution of the existing company is received:
 • Different combination of the same words
 • Exact Hindi translation of the name of an existing
company in English Also, the following are to be observed:
 If the proposed name resembles that of a company in
liquidation, the name shall not be allowed for 2 years after
dissolution
 In case a company is liquidated under Section 560 of the
Companies Act, 1956 a similar name cannot be registered
until 20 years have passed after liquidation.
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Other Conditions:
The name should not contain (or imitates or somehow conveys that
there is a connection with) any government or reputed
international institutions like UN, Red Cross, World Health
Organisation, International Civil Aviation Organisation,
Interpol etc.
 Any name which may suggest or be calculated to suggest the
patronage of the Government of India or the Government of a
State; or connection with any local authority or any corporation
or body constituted by the Government
 Mahatma Gandhi, Pt. Jawaharlal Nehru, Shrimati Indira
Gandhi, Chhatrapati Shivaji or the Prime Minister of India or the
words Gandhi, Nehru or Shivaji,
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Ramakrishna Math and Mission, Sri Sarada Math and
Ramakrishna Sarada Mission, Bharat Scouts and Guides,
International Olympic Committee, National Youth, Auroville,
The name of Sri Sathya Sai Central Trust, Sri Sathya Sai,
National Human Rights Commission, Ashoka Chakra
- Name must not have any connection with these names.
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When you apply for the name for your company, you need
to fill e-form-1A on the RoC website, using Digital Signature
Certificate (DSC), and furnish a personal declaration that
you have complied with these guidelines.
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If you want to use certain keywords in the name, like
industries, international, corporation etc, there are some extra
guidelines.
You need to have a minimum authorised share capital for this.
For instance, to have the word Corporation in your name, you
must have authorised share capital of Rs. 5 crore
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Legitimate question…
What is Authorised Share Capital?
It is not the real capital you have, this is the amount of
capital that the company is entitled to raise by selling
each share at face value.
You may not raise all the authorised capital right at the
beginning, as there maybe some unissued shares,
which the company may issue in future.
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 1) Corporation – 5 crores
 (2) International, Globe, Global, Universal, Universe,
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Continental, Inter-Continental, Asiatic, Asia, Asian, World
being the first word of the name – 1 crore
(3) If any of the key words at (2) above is used within the
name (with or without brackets) or Hindustan,
Hindustani, Hindustanee, India,Indian, Bharat,Bhrarati, B
haratiya, Bharateeya, being the first word of the name – 50
lakhs
(4)Hindustan,Hindustani, Hindustanee, India,Indian, Bha
rat,Bhrarati, Bharatiya, Bharateeya is used within the name
(with or without brackets) – 5 lakhs
(5) Industries, Udyog, Industrial, Industry – 1 crore
(6) Enterprises, Enterprise, Products, Product, Business,
Manufacturing, Manufacture – 10 lakhs
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For registering Trade Mark
 Invented words or coined words that cannot be found in a dictionary
as such form the best options for trade marks, since they can seldom
be used as a generic word for any purpose.
 A company selling apples can not register the trademark apple –
because it is descriptive of the business and a generic word!
 One should always be careful to avoid selection of a geographical
name precisely for the same reason.
 It is in the best interest of a person not to select as names descriptive
or generic names or names that describes quality of a good such as
best, perfect etc., or names which have become customary in the
current language or in the established practices of related trade.
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Continued…
 You should also give a thought as to whether the
proposed name could be offensive to any section of
people, whether it contains any profanity or words
or phrases that are generally considered a slur
against any ethnic group, religion, gender or
heredity, or whether it is of such a nature as to
deceive the public or cause confusion.
 Need to do a trademark search – to know if
someone is already using the name
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 The selected mark/name should be capable of
being represented graphically (that is in the paper
form).
 It should be capable of distinguishing the goods or
services of one undertaking in relation to which it
is being used from those of others.
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Who Can Make an Application?
 In case of a company about to be formed, anyone
may apply for a trademark registration in his name
for subsequent assignment of the registration in
the company's favor.
 The application for registration has to be made in
writing to the Registrar of Trade Marks and it has
to be filed in the office of the Trade Mark Registry
under whose jurisdiction the principal place of the
business of the applicant in India falls.
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Duration of Trade Mark Protection
Available in India
 Term of registration of a trademark is ten years,
which may be renewed for a further period of ten
years on payment of prescribed renewal fees.
 However, non-usage of a registered trademark for a
continuous period of five years is a valid ground
for cancellation of registration of such trademark
at the behest of any aggrieved party.
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Procedural Forms For Trademark
Transactions
◦ For filing new applications- There are prescribed forms depending
on the nature of application such as Form TM-1, TM-2, TM-3, TM-8,
TM-51 etc.
◦ Official search request for trademark - (Form TM-54).
◦ Preliminary advice of the Registrar as to the registrability of a mark -
(Form TM-55).
◦
To know about various trademark forms and fees in details, you can visit
http://www.ipleaders.in/content/pdf/THE%20FIRST%20SCHEDULE%20TO%20TR
ADE%20MARKS%20RULES%20-%20FORMS%20AND%20FEES.pdf
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Necessary Documents
 Proprietorship concern: Full name and address of the
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proprietor and true copy of identity and address proof.
Partnership concern: Full name and address of all
partners and true copy of related documents.
Company concern: full name and address of all
directors and true copy of related documents.
If one has claimed that the proposed mark is used
since before application in another country, then
evidence for such claim has to be provided.
Label of the proposed Trade Mark (Standard Label
size 9cm x 5 cm) has to be provided.
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Approximate Total Cost Involved in
Trade Mark Registration
 The exact cost involved in the registration of a trademark will
depend on the following variables:
 The number of trademarks one registers – (e.g., the name of
the brand, the company name, the business logo).
 The number of classes under which one registers each logo or
name.
 The amount of lawyer’s fees for the filing process and the
trademark search.
 Registering a trademark will cost at least 3000 per mark per
class if you do it all by yourself
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Thank You
Word of advice: if you have average intelligence and
some patience, you should be able to learn and handle
a lot of these legal processes all by yourself.
iPleaders and Intelligent Legal Risk
management LLP