पाठशाला Pathshala · नियम Niyam, Law and compliance · Lesson 08 · Start

Trademarks: registering the brand you can defend

A company name approved by the MCA is not a brand you own. A trademark is, if you search before you fall in love with the name and file before you print it.

Pathshala, The Founder Library · 11 October 2026 · 7 min read

Photograph: Teona Swift · Pexels

In month three a founder registers the company, buys the domain and prints the packaging. In month twenty, with ₹40 lakh a month of sales and a waiting list for the second product, a letter arrives from a company in another city that has used a similar name for related goods since before the founder was out of college. The letter asks the company to stop using the name in thirty days. Every rupee spent on the brand is now spent on the other company’s brand.

This lesson is about not receiving that letter. It explains why a company name is not a trademark, how to search before choosing, which names the Registry accepts, how to pick classes and file, and what to do in the ten years after. The figure in the middle tells you the odds and the official bill for the name on your whiteboard.

A company name is not a trademark

When the MCA approves a company name it is checking the name against companies and LLPs already on its own register. The approval says nothing about whether someone owns the word as a trademark for the goods you plan to sell. Those are different registers run by different offices under different laws. The Trade Marks Act 1999 goes further than founders expect: section 29(5) says a registered trademark is infringed by a person who uses it as a trade name or part of the name of its business, where that business deals in the registered goods or services. An approved company name can therefore infringe someone else’s mark from the day of incorporation.

Registration matters because of what it gives you. Section 28 grants the registered proprietor the exclusive right to use the mark for the registered goods or services and to sue for infringement. Without registration section 27 leaves you only a passing-off action, in which you must prove your own reputation, the other side’s misrepresentation and damage. That is a long and expensive way to defend a brand. And because section 23 dates a registration to the day of application, filing early buys priority even while the application is examined.

Search before you name anything

The search is the cheapest step in the whole process and the one most often skipped. Do it before the logo, the domain and the deck, in three layers. First, the Registry. IP India’s public search lets you search the register by word, by phonetic match and by class. Search the exact word, then spellings that sound alike, then the word with common prefixes and suffixes. A mark that sounds like yours counts as much as one that looks like it, because customers ask for a brand by saying it.

Second, the market. Search marketplaces, app stores, social handles and a plain web search for the word with your product category. Unregistered users matter: section 34 protects a person who has continuously used a mark from a date earlier than your use or registration, and a prior user can also bring a passing-off action against you. Third, the classes your business will grow into. A name that is clear in software may already belong to someone in clothing or food, and you will want to sell merchandise or open a café in year four.

Write down what you found, with screenshots and dates. If the result is anything other than clean, pay a trademark agent for a search opinion before committing. It costs a fraction of a rebrand.

Choosing a name the Registry will accept

Section 2(1)(zb) defines a trademark as a mark capable of being represented graphically and of distinguishing the goods or services of one person from those of others. Everything follows from the word distinguishing. Section 9(1) refuses marks devoid of distinctive character and marks that consist only of words that may serve in trade to describe the kind, quality, quantity or intended purpose of the goods. Section 11(1) refuses a mark that is identical or similar to an earlier mark for identical or similar goods where the public is likely to be confused.

Every block prints a pattern no other block can. That is the test the Registry applies to a name. Photograph: H · Pexels

Think of names on a spectrum. Generic names, the ordinary word for the product, cannot be registered for it. Descriptive names, the ones founders love because they explain the business, are objected to unless the company can prove the public already associates them with it, which a young company cannot. Suggestive names hint at a benefit and need a moment’s thought; they are usually accepted. Arbitrary names, real words with no connection to the product, and coined names, words that did not exist, are the strongest and the easiest to search. The commercial instinct runs the other way, towards names that explain themselves. Resist it. A name that explains itself is a name anyone can use.

The name that explains the business is the name the law lets everyone use. Choose one that only you could mean.

Classes, the form and the fee

India classifies goods and services under the international Nice Classification, whose current edition entered into force on 1 January 2026. It has 45 classes: 1 to 34 for goods and 35 to 45 for services. A registration protects the mark only in the classes and for the goods or services you list, so the list is the boundary of your monopoly. A typical software company files in class 9 for downloadable software and class 42 for software provided as a service; a consumer brand adds the class of the goods it sells, and class 35 if it runs its own retail. Describe the goods precisely and truthfully. A specification that claims everything in a class invites objection and is vulnerable to removal later for the parts you never used.

The application is Form TM-A, filed online. Section 18(1) lets anyone claiming to be the proprietor of a mark used or proposed to be used apply, so a company that has not launched can file on a proposed-to-use basis and should. File in the company’s name, never a founder’s; a mark owned by a founder is a mark the company has to buy, and an assignment then has to be registered under section 45. IP India’s schedule of fees, checked on 10 October 2026, sets the e-filing fee at ₹4,500 a class for an individual, startup or small enterprise and ₹9,000 a class for everyone else. Startup India describes the lower rate as a 50 per cent rebate for startups and adds that the Central Government bears the fees of empanelled facilitators for recognised startups, who then pay only the statutory fee. Expedited examination on Form TM-M costs ₹20,000 a class at the lower rate and ₹40,000 otherwise.

After filing: objections, opposition and the ten years

The examiner reports. If the report raises an objection under section 9 or 11, you reply in writing and, if needed, at a hearing; a reply that shows the mark is distinctive and that the cited mark covers different goods often succeeds. Once accepted, the mark is advertised in the Trade Marks Journal, and under section 21(1) anyone may oppose it within four months of the advertisement. If nobody does, or the opposition fails, the mark is registered as of the application date. Use TM beside the mark while it is pending. Do not use ® until the certificate issues: section 107 makes falsely representing a mark as registered an offence.

Under section 25 a registration lasts ten years and can be renewed for further ten-year periods; IP India’s schedule lists the renewal fee on Form TM-R at ₹9,000 a class by e-filing. Under section 47 a registered mark can be removed from the register on the application of a person aggrieved who shows there was no genuine use of it for a continuous period of five years. A registration is a right you keep by using it, in the form registered, for the goods registered.

The name that invites a notice in year two

The letter in the opening paragraph usually arrives for one of four reasons, and each is visible on the day the name is chosen. The name sounds like an earlier registered mark for related goods, which a phonetic search would have found. It matches an unregistered business with a longer history, which a market search would have found. It is descriptive, so the company’s own application was refused and it has no registration to stand on. Or the mark was filed in a founder’s name, or in too few classes, and the company expanded into a class where someone else had filed first.

Two more habits close the gap. Watch the journal for marks similar to yours in your classes, either yourself each month or through a watching service, and oppose within the four months; an opposition is far cheaper than an infringement action after the other mark is registered. And record the date and evidence of first use, invoices, listings and launch posts, in a single folder. Priority disputes are decided on dates, and the company with the dated folder usually wins.

The trademark routine, once a quarter

Before any new name, product line or sub-brand is announced, run the three-layer search and walk the figure above. For anything that will carry revenue, file the same week, in the company’s name, in every class the plan for the next three years touches. Then once a quarter spend twenty minutes on four checks: the status of every pending application and any examination report awaiting reply; the journal for similar marks in your classes, with a decision on opposition inside the four months; evidence of use for each registered mark and class; and the renewal dates for the next twelve months. Put the ten-year renewal date in the company calendar the day the certificate arrives.

Nothing here is legal or tax advice; confirm the current rule with a chartered accountant or lawyer before acting.