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

Naming a company

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.

iPleaders and Intelligent Legal Risk Management Solutions LLP

You have to get the name registeredWith Registrar of Companies before you

incorporateWith Trademark registrar, before or after

starting business

Changing name midway is very costlySince 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


Ready with notebook and pen?


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?


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 search <http://124.124.193.236/tmrpublicsearch/tmsearch.aspx>

At this point you also need to identify the classes in which your services or products belong. Link here to do that.


http://124.124.193.236/tmrpublicsearch/tmsearch.aspx

http://www.ipleaders.in/content/pdf/THE%20FOURTH%20SCHEDULE%20TO%20TRADE%20MARKS%20RULES%20-%20CLASSIFICATION%20OF%20GOODS%20AND%20SERVICES.pdf

Next step – is the name undesirable?Section 20 of the Companies Act, 1956 states that no company should be registered with an undesirable name.


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


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


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 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 distinguishableThe use of a different tense or number of the same meaning

(eg Chaar & Four or 3 & three)iPleaders and Intelligent Legal Risk Management Solutions LLP

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.


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,


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.


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.


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


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.


1) Corporation – 5 crores(2) International, Globe, Global, Universal, Universe,

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, Bharatiya, Bharateeya, being the first word of the name – 50 lakhs

(4)Hindustan,Hindustani, Hindustanee, India,Indian, Bharat,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


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.


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


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.


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.


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.


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%20TRADE%20MARKS%20RULES%20-%20FORMS%20AND%20FEES.pdf


http://www.ipleaders.in/content/pdf/THE%20FIRST%20SCHEDULE%20TO%20TRADE%20MARKS%20RULES%20-%20FORMS%20AND%20FEES.pdf



Necessary Documents

Proprietorship concern: Full name and address of the 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.


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


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