As the trademarks are intrinsically linked with brand identity and brand value, it is not astounding that many start-ups frequently assume that the name chosen by them would be allocated by the RoC and make the assumptions given below that they can begin using the approved name by the RoC as their domain or otherwise. In this blog, we will know about trademark registration and the entity’s legal name, as both of them are distinct from each other.
It is essential to carry out the process of brand registration in India before initiating a business.
If there is a situation where the promoters insist on a specific word or phrase to be included in the chosen name, and the RoC demands the opposite, then there is an alternative way. We have overcome those situations, suggesting that the start-up might register their private limited company with a different legal name and subsequently acquire a trademark on the desired name under the incorporated company.
Primary distinction betwixt a company name and a trademark
A company name is a name to recognize the business, an entity or an individual. It is official under which the given entity or person opts to do business (be it an LLP, company, partnership or sole proprietorship). A company name is the name of the type of legal entity that would generally have words in it, such as ABC limited, or it could be some other variation at the end of its name.
On the other hand, a trademark is used to identify a service or product in the marketplace. It can be a phrase, word, symbol, logo, colour, design or a combination of one or more of these components that differentiate it from others in the market. A registered trademark should specify the types or class of goods or services concerning its use.
Things to keep in mind before fixing on a trademark or company name
- First is zeroing in on any name; the start-up must keep in mind that the chosen name is not taken undesirable (as per the companies act) by the RoC. A preferred name is considered undesirable if it too nearly similar or identical; A) existing company’s name and names already approved by the RoC. B) existing LLP’s name or names already approved by Registrar of LLP. C) a registered trademark or trademark is subject to an application for registration of any other individual under the trademark act, 1999.
- The application is obliged to conduct a public search of trademark or patent on the words used in the name.
- The chosen name should not include words or phrases or profanity that are considered a slur against the ethnic group, religion, heredity or gender.
- The chosen name should reflect the principal business operations that the chosen company intends to follow post-incorporation.
- The words like ‘ltd’ ‘Pvt Ltd ‘LLP’ should not be regarded as a differentiable feature while distinguishing names from others. Likewise, the plural version of any words seeming in the name, type or case of letters, spacing betwixt letters and punctuation marks, joining words together or splitting the words, use of different tense or a number of the same word, using the various phonetic spellings or spellings variations, exact inter-lingual translations of the same word, abbreviated names will also be disregarded while allocating the name for a start-up. If the chosen name includes any word or an expression that has the potential to give the impression that the company is in any way linked with or having the patronage of the central government or any state government or any local government, corporation or body constituted by the central or any state government under any law for the time in force should not be permitted unless the preceding approval of central government has been acquired for the use of any such word or expression.
The registrar of companies has been assigned with power to withdraw the name granted to a company any time before the company’s registration. Nonetheless, RoC would pass a particular order providing reasons for withdrawal of name, with a chance to the applicant of being heard, before the withdrawal of such name.
Once the LLP or company is registered, the MCA will not permit any other LLP or company to be registered with an identical name as per the companies act, 2013. Nonetheless, a business’s name can be used by others if trademark registration is not acquired. Here, there is a distinction betwixt brand name and legal name. The company’s brand name might be similar to the company’s legal name. Though, it can be different as well.
A specific name might not be available as a legal name via RoC but does not disqualify it from being the brand name for a particular company. The name of the LLP or company works as a visage, and that’s why it is crucial to give it a unique and meaningful name. The same goes for the trademarks as well. Thus, a company name must also be trademarked.