Since trademarks are inherently associated with brand identity and brand value, it is not surprising that a lot of start-ups often assume that the name envisioned by them will be granted by Registrar of Companies and make the following assumptions, that they can start using the approved name by the ROC as their domain or otherwise. In this article, we are stressing on the point that the Legal name of the entity and trademark registrations are two different things.

Having said that, if there arises a situation where the promoters insist on a particular word or phrase to be included in the proposed name and the RoC insists on the contrary, then there indeed is an alternative way. We have faced and successfully dealt with such situations, recommending that the start-up might avail the registration for their private limited company with a different legal name and subsequently obtain trade-mark on the desired name under the incorporated company.

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KEY DIFFERENCES BETWEEN A COMPANY NAME AND A TRADEMARK

 

A company name is simply a name to identify a business, an entity or an individual. It is the official name under which the said entity or individual chooses to do business (be it a company, LLP, partnership or sole proprietorship). A company name is the name of the type of legal entity that will usually have the words ‘Pty Limited’ (or some variation) at the end of its name.

Whereas, a trademark is used to identify a product or service in the marketplace. It is a word, phrase, logo, symbol, design, colour or a combination of one or more of these elements that distinguish it from other products and services. A registered trademark must specify the types (or classes) of goods and services concerning where it is used.

 

THINGS TO REMEMBER BEFORE FIXING ON A COMPANY NAME/TRADEMARK:

 

1. First and foremost, before zeroing in on any name, the start-up should keep in mind that the proposed name is not considered undesirable (as defined under the Companies Act) by the RoC. A proposed name is considered undesirable if it too nearly resembles:

   a) Name of a company in existence and names already approved by the Registrar of Companies;

OR

b) Name of an LLP in existence or names already approved by Registrar of LLP;

c) A registered trademark or a trademark is subject to an application for registration, of any other person under the Trade Marks Act, 1999.

2. The applicant should also conduct a public search of the trade-mark or patent on the words to be used in the name.

3. The proposed name should not contain profanity or words or phrases that are generally considered a slur against an ethnic group, religion, gender or heredity.

4. The desired name should reflect the principal business operations that the proposed company wishes to follow post its incorporation.

5. The words “Pvt Ltd”, “Ltd”, “LLP” shall not be regarded as a distinguishable feature while differentiating a name from the other. Similarly, the plural version of any of the words appearing in the name, type and case of letters, spacing between letters and punctuation marks, joining words together or separating the words, use of a different tense or number of the same word, using different phonetic spellings or spelling variations, exact inter-lingual translations of the same word, abbreviated names are also disregarded while granting the name for a start-up. If the proposed name contains any word or expression which is likely to give the impression that the company is in any way connected with or having the patronage of the Central Government, any State Government, or any local authority, corporation or body constituted by the Central or any State Government under any law for the time in force shall not be allowed unless the previous approval of Central Government has been obtained for the use of any such word or expression.

The RoC has been vested with the power to withdraw the name allotted to a company any time before the registration of the Company. However, ROC will pass a specific order giving reasons for withdrawal of name, with an opportunity to the applicant of being heard, before the withdrawal of such name. 

 Thus to Conclude –

Once a Company or LLP is registered, the Ministry of Corporate Affairs will not allow any other Company or LLP to be registered with a similar name as per the Companies Act, 2013. However, the name of the business can still be used by others if trademark registration is not obtained. An important aspect that needs to be highlighted here is the difference between the brand name and legal name. The brand name of a company might be identical to the legal name of the company. However, it can also be different. A particular name might not be available as a legal name through the RoC but that does not disqualify it to be the brand name for that particular company. A very easy and close example would be of Taxmantra.com itself; wherein the legal name of the company is TM Solutions Private Limited, wherein Taxmantra.com as a brand is registered under trademark and copyright for a class of services and product, the owner of which is TM Solutions Private Limited. A name is the visage of artificial judicial persons like company, LLP, etc. Hence, securing a unique and meaningful name should top the priority list of all requirements with regards to company incorporation, also if the founder of the startup feels that a particular phrase or word can be successfully trademarked for a class of services or products, then the same can be trademarked or copyright under the legal name of the entity. Registration of a Company or LLP protects the registration of another Company or LLP with a similar or identical name only. Hence, it is recommended that the company name should also be trademarked.

 

 Thus to Conclude –

 

An important aspect that needs to be highlighted here is the difference between the brand name and legal name. The brand name of a company might be identical with the legal name of the company. However, it can also be different. A particular name might not be available as legal name through the RoC but that does not disqualify it to be the brand name for that particular company. A very easy and literally close example would be of Taxmantra.com itself; wherein the legal name of the company is TM Solutions Private Limited, wherein Taxmantra.com as a brand is registered under trademark and copyright for a class of services and product, the owner of which is TM Solutions Private Limited. A name is the visage of the artificial judicial persons like company, LLP, etc. Hence, securing an unique and meaningful name should top the priority list of all requirements with regards to company incorporation, also if the founder of the startup feels that a particular phrase or word can be successfully trademarked for a class of services or products, then the same can be trademarked or copyright under the legal name of the entity.

 

 

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We’re listening: 

For any query, support or feedback, reach us at Trademark, Patents and Copyrights Assistance or Call/WA us at +91-9230033070 for any support/query/feedback.

 

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