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  • ⁠THE ROLE OF MSMES IN BOOSTING THE INDIAN ECONOMY: CHALLENGES AND OPPORTUNITIES

    Introduction

    Medium, Small and Micro enterprises abbreviated as MSMEs and often referred to as Small Businesses in India are the backbone of the Indian economy. MSMEs and Small businesses have have a significant and remarkable impact on India’s economic development. MSME’s growth in an economy is a clear indication of a thriving and sustainable economy as they contribute significantly to not just GDP, exports, but also employment. 

    Since India is one such place where small businesses and MSME’s dominate the economy, economic growth of the nation is inevitable. Hence, MSME’s growth in any economy is essential to its long term growth and development. However, MSME’s growth in any nation, especially in India, comes with its own set of MSME challenges and MSME opportunities. This article will delve deep into the various MSME challenges faced by small businesses in India and the opportunities which incentivise opening up a small business in India.

    Entrepreneurship in India

    India is experiencing an entrepreneurial drive with small businesses and MSME’s opening up in each part of the country right from metro cities to even the most remote and underdeveloped villages of the nation. Entrepreneurship in India is seeing a drastic rise thanks to the various government incentives, policies and opportunities in the market. This makes opening up a small business in India a great choice for any individual with entrepreneurial skills. 

    With shows like Shark Tank India getting the unparalleled hype, viewership and popularity; the concept of entrepreneurship has seeped deep into the minds of the general public irrespective of their social or economic status. The scope of MSMEs growth is making entrepreneurship in India, a great option for the upcoming generation to pursue.

    The Role of MSME’s Growth India’s Economic Development

    The role of MSMEs or Small businesses in India’s Economic Development is extremely prevalent. One cannot deny the dominance that these MSMEs or small businesses play in boosting an economy, especially one like India where the job market is already over-saturated and population is at an all time high. This makes entrepreneurship a great option for individuals. Let’s discuss the Role of MSMEs / Small Businesses in India’s Economic Development in detail:

    1. Employment Generation: One of the first and rather prominent outcome of MSMEs Growth in India’s Economic Development is that of Employment generation, simply called as job creation. With Indian population touching almost 140 crores, the government’s primary concern circles around employment generation for the world’s most populated country. This is where MSME’s play a significant role by generating job opportunities for people. As per McKinsey Global Institute report, MSMEs employee over 62% percent of India’s working population. More so, the jobs created by MSMEs is not restricted to Metro cities, rather the same is distributed throughout the territory of India by significantly covering rural & semi-urban areas which in turnreduces migration to metro cities and the problem of brain drain in the nation.
    2. Contribution to GDP: The second most prominent outcome of Small Businesses in India’s Economic Development is that of its contribution to India’s GDP (Gross Domestic Product). With Prime Minister Narendra Modi’s vision of making India the third-largest economy in the world by 2030-31, the role of MSME growth becomes even more crucial as MSMEs contribute over 30% to India’s GDP. Thus MSMEs and Small businesses serve as the backbone of Indian economy with its yearly contribution to the country’s GDP having a steady and significant rise.
    3. Enhancing Exports: It is not unknown to the public that Exports is perhaps the most effective and efficient manner to help an economy grow. MSMEs growth is precisely the answer to enhancing exports in India. As per government’s report, MSME’s contribute to 45.79% of India’s total exports. This is a significant number which is only bound to increase in the future. Thus, MSMEs growth also directly help India to strengthen its position in the global market
    4. Encouraging Research, Development and Innovation:The fact that India’s is an extremely competitive market is not unknown to anyone. Hence, surviving in such competitive market acts as a MSMEs challenge. Small businesses can only overcome this challenge by investing more in research, development and Innovation. This in turn leads to Intellectual Property generation and the public getting better goods and services at competitive prices.
    5. Rural Development and All round growth of the nation: GDP is not always the accurate indicator of a country’s strong economy since a significant contributor of GDP may come from large corporations and MNCs which are typically located in India’s First tier cities which leads to the rural and semi-urban areas of the nation being ignored. MSMEs and small businesses come as a saviour in this case. Since MSMEs and small businesses are not concentrated in the Metro cities, the development, economic and job opportunities can penetrate deeper into the relatively underdeveloped parts of the country.

    The aforementioned as only few out of the innumerable benefits of MSME’s growth in a nation, especially for a nation like India.

    MSME’s Growth Opportunities in India

    India is one of the most diverse markets in the world with abundance of people of all sorts of likes, choices, purchasing power, preferences etc., existing in one single place. Recognising this , the government has introduced several schemes, initiatives and policies to help MSMEs grow. Some of such schemes, initiatives and policies introduced by the Indian government have been discussed hereinunder:

    1. Government Schemes: One of the most popular initiatives taken by the government is that of introduction of the Government schemes such as Make in India scheme,PM Vishwakarma scheme,Self Reliant India Fund, Credit Guarantee Scheme, Raising and Accelerating MSME Performance (RAMP) etc.,thorough which the government has undertaken to decrease its reliance on Imports, empower MSMEs and help stabilize the Indian Economy. Under these schemes, the government has undertaken to incentivise MSMEs by providing to them low interest loans, subsidies, protection against delayed payments, easy credit facilities along with other financial, infrastructural support. This has significantly led to MSME growth in India.
    1. Easy Loan/Credit Facilities: The Indian banks have been directed by the Indian government to provide cheap, low interest loans to MSMEs and Small Businesses in India to fuel MSME growth in the country. Further, the collateral requirements for businesses has also been eased to ensure the easy survival of MSMEs in today’s competitive market.
    1. Reduction in Government Fees:The Indian Government has always taken proactive steps to provide subsidized prices for government services including fees for obtaining registrations, licences and certifications to MSMEs. This reduces their financial burden while ensuring that they stay legally compliant.
    1. Low interest Loans: Through its plethora of schemes, funds and initiatives, the government has made sure that MSMEs be given loans at low interests. This also significantly reduces their financial burden and helps then stay afloat. Further, loan repayment conditions are much more relaxed for MSMEs. Small businesses in India are also legally protected against delayed payment in certain cases.
    1. Tax Benefits: The government has extended tax benefits to Small businesses in India to ensure that they can reinvest their profits and revenue back into their businesses instead of getting caught up in tax obligations. Tax rates for MSMEs is thus, deliberately lowered.
    1. Infrastructural Support: The government also provides infrastructural supports by making places like the Special Economic Zones (SEZs) wherein the government undertakes to provide infrastructural facilities, water, electricity etc., at subsidized rates to businesses which choose to open up at such paces.
    1. Relaxed Legal Obligations: MSMEs in India have several exemptions from legal obligation like certain exemptions in labour laws and tax laws. This ensures that small businesses in India could focus on their businesses rather than being caught up in unnecessary legal compliance.

    Key MSME Challenges in India

    Although, the benefits of opening up Small business in India far outweigh the MSME Challenges, one still needs to consider them. One major challenge faced by MSME in India is that of competing with big players and corporations in the market. These big players have plethora of resources, opportunities as well as strong standing which helps them dominate the market. In such case entrance of MSMEs in the market becomes challenging.

    Other key challenge faced by small businesses nationwide is the lack of capital, investments and other financial constraints. This financial constraints limit the scope of MSME growth, expansion and diversification stopping the MSME to operate at its full potential.

    Further, although the compliances and other regulatory requirements have been significantly eased for MSMEs, still, the existing regulatory and compliance burden might be challenging to mitigate.

    Furthermore, the constant Technological and infrastructure advancements are difficult to keep up with. MSMEs do not have money to invest in high-tech technology and this acts as a significant MSME Challenge.

    All this adds up to make starting and running a MSME in India a challenging task.

    Conclusion

    India’s economic development relies on MSME’s Growth. Small Businesses in India are India’s answer to becoming world’s third largest economy. Thus, the government needs to take significant steps to boost entrepreneurship in India and help MSME to smoothly navigate its challenges. Entreprenurs also need to be educated regarding the government schemes and various benefits available to them as Small Businesses Owner in India. At the same time, the government should also increase education regarding entrepreneurship in school courses to plant the idea ofentrepreneurship in young Minds. Also, register your MSME with TMWala.

    Reference: https://pib.gov.in/PressReleaseIframePage.aspx?PRID=2035073

  • SECTION 28 OF THE TRADE MARKS ACT, 1999

    The Trade Marks Act, 1999 provides legal protection to registered trademarks, allowing owners to exclusively use and also to sue other trade marks for infringement. This exclusive right to use the registered trademark is provided under section 28 of the Trade Marks Act. 

    This article discusses the provision of section 28 of the Trade Marks Act in detail:

    Section 28(1) of the Trade Marks Act:

    Section 28(1) of the Trade Marks Act provides two rights to the Registered Proprietor:

    1. Exclusive right to use its registered trade mark: The Registered Proprietor has sole authority to use its registered trade mark.
    1. Right to seek relief in case of infringement: By virtue of exclusive right or sole authority over a registered trade mark, the Registered Proprietor has right to take legal action and seek relief against any person who is using the trade mark similar to its registered trade mark in any manner or such unauthorised use leads to confusion or deception amongst consumers or even general public.

    However, it is to be noted that such exclusive right to use a trademark is limited to specific goods or services in respect of which the trade mark obtained registration. In addition, the exclusive right granted under section 28(1) of the Trade Marks Act is not absolute and are subject to provisions of the Trade Marks Act.

    Illustration:

    A person ‘X’ got the trademark ‘Flewbee pretty’ registered for clothes and footwears. Later, ‘Y’ applied for registration of the same mark for the same goods. ‘X’ can stop ‘Y’ from using the same mark by taking legal action against him as ‘X’ have exclusive right to use the mark ‘Flewbee pretty’ for clothes and footwears by virtue of Registration under the Trade Marks Act.

    For more on trademark infringement and legal actions, visit WIPO’s Trademark Guide.

    Section 28(2) of the Trade Marks Act:

    The exclusive right conferred by section 28(1) of the Trade Marks Act to the registered proprietor to use the registered trade mark is not absolute. This exclusive right to use the registered trade mark is subject to conditions and limitations imposed on the trade mark while granting it registration.

    The conditions or limitations might be geographical, restriction on style or design of the mark, etc.

    Illustration:

    A person ‘X’ got his trademark ‘Flewbee pretty’ registered for clothes and footwears with the condition that the same shall be used only in the region of Madhya Pradesh and Maharashtra (Geographical condition). Later, ‘Y’ applied for registration of the same mark ‘Flewbee pretty’ for the same goods to be used in ‘Chandigarh’. ‘X’ cannot stop ‘Y’ from using its trade mark, as ‘X’ has exclusive right to use the trade mark ‘Flewbee pretty’ only in the region of Madhya Pradesh and Maharashtra.

    Section 28(3) of the Trade Marks Act:

    Section 28(3) of the Trade Marks Act provides that in case two or more persons have identical or similar registered trade marks, the exclusive right to use one registered trade mark does not extend against other similar registered trade marks. In simple words, it is clear that the However, the owners of such similar registered trade marks will have same rights against other persons using the trade mark similar to their registered trade mark. 

    Illustration:

    ‘X’ has registered Trade Mark ‘Flewbee pretty’ and ‘Y’ has registered trademark ‘‘Flewby pretty’’. Both the trade marks are similar, however, neither ‘X’ nor ‘Y’ can take any action against each other. But if ‘Z’ uses the mark ‘Flewbii pretty’ and the same is unregistered. Both ‘X’ and ‘Y’ will have same right to take action against ‘Z’.

    Case Law related to section 28 of the Trade Marks Act:

    P.M. Diesels Private Limited v. Thukral Mechanical Works

    In this case, it was decided that since both parties were registered proprietors of identical trade marks, although for different kinds of goods, neither the plaintiff nor the defendants had the right to file a lawsuit against the other. However, in the event that the trademark was violated by any third party, they would have the right to pursue legal action against any third party. To get in more depth about this case

  • SECTION 27 OF THE TRADE MARKS ACT, 1999

    The Trade Marks Act, 1999 provides legal protection to registered trademarks, allowing owners to exclusively use and also to sue other trade marks for infringement. Section 27 of the Trade Marks Act also provides statutory protection to unregistered trademarks by upholding common law rights through the passing-off principle. In accordance with section 27 of the Act even though an unregistered trademark cannot be protected through an infringement case, the owner may still pursue legal action if someone tries to mislead consumers or damage the company’s reputation by abusing the mark.

    Let’s discuss section 27 of the Trade Marks Act, 1999 in detail.

    Section 27(1) of the Trade Marks Act:

    According to Section 27(1) of the Trade Marks Act an infringement suit cannot be filed against an unregistered trademark i.e. the trade mark not registered under the Trade Marks Act, by any person. 

    Illustration: 

    A person ‘X’ uses a trademark ‘PickliBoo’ for confectionery goods. The trademark ‘PickliBoo’ of ‘X’ is not registered under the Trade Marks Act. If other person ‘Y’ copies the mark ‘PickliBoo’, ‘X’ cannot file an infringement suit against the copied trademark of the ‘Y’ since the mark ‘PickliBoo’ is not registered by ‘X’. 

    Section 27(2) of the Trade Marks Act:

    Section 27(2) of the Trade Marks Act protects registered as well as unregistered trade mark. This section recognises common law rights of the trade mark owner to take action against any person for passing off goods or services as the goods or services of another person. Accordingly, even if a trade mark is not registered, the owner of such trade mark can still take action under the common law principle of passing off. 

    And, for this, the owner of the unregistered trade mark must prove that the said trade mark has reputation and goodwill in the market, there has been misrepresentation in the market and owing to this the use of the other copied mark would substantially damage the business of the owner of the unregistered trade mark.

    Illustration:

    A person ‘X’ uses a trademark ‘PickliBoo’ for confectionery goods. The trademark ‘PickliBoo’ of ‘X’ is not registered under the Trade Marks Act, however, enjoys substantial goodwill and reputation in the market and have extensive market base. If other person ‘Y’ copies the mark ‘PickliBoo’, ‘X’ can file a Passing off suit against the copied trademark of the ‘Y’.

    Conclusion

    In conclusion, section 27 of the Trade Marks Act restricts legal action for infringement to registered trademarks only. Nonetheless, it recognizes passing off as a powerful remedy to protect business reputation and goodwill for unregistered trademarks.

    Learn more about common law rights and passing off at WIPO and IP India.

    Register your trademark with us starting at only Rs. 999/-

  • SECTION 21 OF THE TRADE MARKS ACT, 1999

    A trademark is a unique symbol, logo, word, design or combination of these which is capable of being distinguished from the goods and services of one person or entity from that of another person or entity. By virtue of registration of a trade mark the owner of the trade mark enjoys exclusive right to use the same. The Trade Marks Act, 1999, which grants the registered trademarks legal protection and the owner exclusive rights, also regulated process of trade marks registration in India. Section 21 of the Act provides provisions related to opposition proceedings, allowing any person to challenge the registration of a trademark before it is officially granted.

    In addition, the Trade Marks Act, 1999 also provides process for opposition to a trade mark, where any individual or entity can challenge a trademark application if they feel, it violates their rights or creates confusion in order to preserve a fair and competitive market. This process of opposing a trade mark is outline under section 21 of the Trade Marks Act.

    Here is an article that discusses the provisions of section 21 of the Trade Marks Act in brief.

    Explanation of the terms used in the article:

    1. Oppose/Opposition: to contest or to challenge a trade mark.

    2. Opponent: The person who has filed opposition or the person who is opposing the Trade Mark applied for the registration.

    3. Applicant for Registration: The person who has filed application for the registration of the Trade Mark.  4. Opportunity to be heard: Giving the parties involved in the case equal and fair chance to present their arguments before deciding the case.

    Section 21(1) of the Trade Marks Act:

    According to Section 21(1) of the Trade Marks Act, any aggrieved person can oppose a trademark. It is not necessary for a person opposing a mark to be prior applicant or registered owner of trademark. However, it is a necessary requirement that the opposition must be in writing, in a prescribed manner and be filed within 4 months from the date of advertisement or re-advertisement of an application for registration in the Trade Marks Journal. 

    Section 21(2) of the Trade Marks Act:

    Section 21(2) of the Trade Marks Act imposes a duty on the Registrar of Trade Marks to serve a copy of the notice of opposition to the Applicant for Registration (person who filed application for registration of the trade mark). Further, section 21(2) of the Act imposes duty on the Applicant for Registration to reply to the notice of opposition by sending the counterstatement to the Registrar within two months from the date on which the Applicant for registration received the copy of the Notice of opposition.

    The Applicant for Registration, in the counterstatement, must state the grounds on which he relies for his trade mark application. Failure in doing say might result in the Application being abandoned and the same will not proceeded for registration. 

    Section 21(3) of the Trade Marks Act: 

    According to section 21(3) of the Trade Marks Act, if the Applicant for Registration sends the counterstatement within the prescribed period i.e. two months from the date of receipt of notice of opposition by the Applicant for Registration, the Registrar of Trade Marks is bound to serve a copy of the same to the opponent. 

    Section 21(4) of the Trade Marks Act: 

    After the Applicant gives the counterstatement in reply to the notice of opposition, the opposition process moves on to the evidence stage. According to section 21(4) of the Trade Marks Act, both the parties to the case i.e. the opponent and the applicant for registration are required to serve evidence in support of their claims. The opponent is required to file evidence in support of notice of opposition within two months from the date he receives the copy of the counterstatement.

    And the Applicant for Registration is required to file evidence in support of trade mark Application and counterstatement within two months from the date he receives the evidence filed by the opponent. Further, this sub-section provides that if the Registrar of the Trade Marks thinks fit, it must also provide both the parties the opportunity to be heard. 

    Section 21(5) of the Trade Marks Act: 

    Section 21(5) of the Trade Marks Act provides provision related to the decision by the Registrar of the Trade Marks. Accordingly, it provides that after considering the arguments of both the parties, evidence submitted and objections raised by the opponent in the notice of opposition, the Registrar of Trade Marks must decide whether to grant the registration to the trade mark applied for registration unconditionally, impose any conditions/ limitations on the same or refuse the registration. 

    Section 21(6) of the Trade Marks Act:

    According to section 21(6) of the Trade Marks Act, if the opponent or the applicant does neither resides nor conduct its business in India after receiving of the notice of opposition or the counterstatement, the Registrar can demand security for costs of proceedings before him. In case of failure to give the security for cost of proceedings, the notice of opposition or the application, as the case may be, will be treated as abandoned.

    Section 21(7) of the Trade Marks Act: 

    According to section 21(7) of the Trade Marks Act, if any party i.e. the opponent or the applicant for registration, desires to make any correction of any error or any amendment in the notice of opposition or a counter-statement, he can request to the Registrar of Trade Marks for the same. And, if the Registrar thinks fit, he may allow such correction or amendment. 

    CONCLUSION

    In conclusion, section 21 of the Trade Marks Act provides the provisions related to the process of opposing a trade mark in India. Accordingly, the opposition can be filed by any person within four months from the date of advertisement or re-advertisement. A copy of the said notice needs to be served by the Registrar of Trade Marks to the Applicant and the Applicant is bound to file counterstatement within two months from the date of the receipt of the copy of the notice, else the trade mark Application may be deemed to be abandoned.

    After the counterstatement is given, both the parties are required to be provide evidences to support their claims. After considering such evidences, giving opportunity to be heard and objections raised by the opponent in the notice of opposition, the Registrar may either grant registration to the trade mark or refuse the same.

    For a detailed legal perspective on trademark opposition, you can visit this resource to explore case studies and official guidelines.

  • How the New Trademark Law Changes Impact Indian Startups in 2025

    India’s trademark law scene is experiencing some well-deserved changes. With the government now centering on modernizing the legitimate systems to back advancement, financial development, and brand protection in India.

    Several emerging patterns and policy shifts are expected to shape trademark law in India in 2025 and beyond. Few of these include major changes like greater digitization, better enforcement measures, global harmonization, and finally some protection for non-traditional trademarks. Understanding these changes is crucial for the Indian start-up scene looking to fortify their intellectual property rights and navigating this rapidly evolving market.

    1. Digitization of Trademark Processes

    India has as of now made critical advancements in digitization of the trademark methods, thus lessening the reliance on manual filings and registration assistance. Be that as it may, another stage of advanced changes is anticipated in trademark law in India, as well as Indian Business Law, by joining the AI and blockchain revolution, modernising trademark management.

    AI’s Role in Trademark Search and Examination:

    The use of AI-driven search calculations will hopefully move forward the precision and proficiency of trademark examination, minimising the large number of clashes, overlaps, and litigation which usually arise. It may also eventually lead to decreasing the probability of false registrations and trademark infringements in India.

    AI can moreover help trademark workplaces in surveying applications for compliance and uniqueness.

    Blockchain for Trademark Records:

    Blockchain innovation can give tamper-proof and straightforward records and as well keep records as a part of the open chain software system it operates on, as well as guaranteeing secure tracking of trademark possession, assignments, and renewals.

    This development will help by offering assistance in combating extortion, unauthorized modifications, and disputes over ownership. Thus, in the future, it can even help settle or overall avoid trademark disputes like prior use as well. Decreasing unnecessary litigation which is rampant currently.

    2. Reinforcing Trademark Assurance in E-Commerce and Digital Marketplaces

    With the rise of online marketplaces, social media branding, and cross-border Digital commerce, Indian businesses confront modern dangers such as cybersquatting, forging, and trademark law in India. Future trademark law are likely to introduce stricter regulations to safeguard brand uniqueness and integrity in the digital space. These changes will also reflect on other Indian Business Law.

    Key changes include:

    • Domain Title Debate Determination: Reinforcing lawful instruments to address the rampant cybersquatting, where people enlist space names comparable to set up brands to confuse consumers.
    • Liability of E-Commerce Platforms: Holding online marketplaces and platforms responsible for trademark infringement in India happening on their websites and ordering them to execute strong protocols to counter and anticipate fake item listings and other such dubious practices.

    3. Extension of Trademark Laws in India to the Protection of Non-Traditional Trademarks

    Traditional trademarks such as logos, brand names, and slogans have long been ensured under trademark law in India. In any case, the modern market spaces are progressive in nature and driven by both tangible and intangible branding, requiring broader security for colour, sound, fragrance, movement, and hologram-based trademarks.

    Many global jurisdictions already recognize non-traditional trademarks, and India is expected to follow suit by introducing clearer guidelines for registration and enforcement. This will be particularly beneficial for industries like luxury goods, hospitality, fintech, and entertainment, where unique brand experiences are a competitive differentiator for brand protection in India.

    4. Stricter Requirements, Enforcement, and Punishments for Infringement

    Trademark infringement in India and counterfeit markets continue to be significant concerns in India. To strengthen enforcement, upcoming reforms are expected to introduce:

    Higher penalties and stricter criminal liabilities for repeat offenders involved in counterfeiting and unauthorized brand usage.

    Specialized IP courts to expedite trademark-related disputes and ensure faster resolution.

    Enhanced coordination between government agencies such as customs authorities and law enforcement to curb the influx of counterfeit goods.

    5. Greater Backing for Start-ups and MSMEs

    Recognizing the vital role of Indian startups and MSMEs in India’s financial development and their overall role in Indian Business Law & markets, the government is anticipated to streamline and even subsidise the trademark registration for start-ups and MSMEs.

    Key initiatives to be introduced include:

    Reduced fees and fast-track application processing for start-ups and MSMEs.

    Awareness campaigns and legal assistance programs to help Indian businesses understand the importance of trademark protection.

    Simplified enforcement mechanisms allowing Indian startups to challenge infringement without excessive legal costs.

    6. Worldwide Harmonization and Cross-Border Trademark Protection

    India has been effectively adjusting trademark law in India with worldwide Intellectual Property standards through agreements like the Madrid Convention.

    Future amendments may further streamline cross-border trademark registration and dispute resolution, making it easier for Indian brands and Indian businesses to expand into international markets well.

    Indian Businesses will benefit from:

    A single-window system for global trademark registration, reducing administrative burdens.

    Better legal frameworks for addressing international trademark conflicts, especially in cases involving multinational e-commerce platforms.

    7. The Rise of Ethical and Sustainable Trademarks

    Consumer preferences are shifting toward sustainability and ethical branding, prompting businesses to adopt environmentally friendly practices. Future trademark laws in India may introduce certification marks or eco-labels to distinguish brands that meet sustainability criteria.

    This will help green businesses build credibility and prevent misleading branding practices such as greenwashing, where companies falsely claim to be environmentally responsible.

    Challenges in Executing Trademark Reforms

    While these reforms promise a stronger, more efficient trademark regime, there are several challenges that must be addressed:

    Backlog of Pending Applications: Application processing delays persist despite digitisation initiatives. To ensure efficiency, more training and resources will be required.

    Accessibility and Awareness: Many companies, particularly those in rural and semi-urban areas, do not understand how important trademark protection is outreach initiatives must be expanded.

    Balancing Market Competition and IP Protection: While more robust trademark laws aid companies in safeguarding their brands, excessive regulation may impede access to widely used terminology and fair competition.

    Conclusion

    The future of trademark law in India is set to empower businesses & Indian Business Law with better brand protection, faster registration, and stronger enforcement mechanisms.

    By embracing digital advancements, expanding global integration, and addressing emerging challenges in the e-commerce space, India is positioning itself as a leader in intellectual property rights.

    As India continues its journey toward becoming a global innovation hub, a dynamic and forward-thinking trademark regime will be essential for fostering entrepreneurship, economic growth, and fair market competition.

    Author: Apoorva Lamba, 2nd Year LLB. Student of Madhav Mahavidyalaya, Jiwaji University, Gwalior

    Conduct Trademark Search on: https://tmrsearch.ipindia.gov.in/tmrpublicsearch/

    Read more about Trademark Search: https://legalguruindia.com/trademark-search/

  • How GST and Financial Year-End Planning Impact Your Trademark Registration

    In the ever-evolving landscape of the Indian business world, the taxation policies and intellectual property rights often intersect at varied points impacting the way businesses manage their assets. One such critical intersection is between the GST and Financial Year and trademark registration. While GST affects some very integral aspects of business operations, its impact on trademark registration in India is sometimes overlooked.

    As the month end along with GST and Financial Year 2024-25 filling approaches, businesses must plan strategically. One must ensure to optimize their tax benefits, ensure the necessary compliance, and safeguard their intellectual property. Let’s explore how GST and Financial Year affects trademark and trademark registration in India, and how businesses can bring into line their trademark strategies with financial year-end planning, and what measures they can and should take to minimize costs and maximize efficiency.

    GST and Its Role in Trademark Registration

    What is GST?

    The Goods and Services Tax (GST) is an indirect form of taxation which was introduced in India on July 1, 2017. It famously replaced a manifold of indirect taxes such as service tax, VAT, and excise duty and more. GST as the name suggests is levied on the supply of goods and services. GST and Financial Year are crucial aspects businesses must consider for compliance. These also include professional and legal services, those of which are associated with trademark registration.

    Although GST may not apply directly to the act of registering a trademark by itself, but it is applicable to various services related to trademarks. Some of which may include legal consultancy, licensing, renewals, and litigation. Businesses and individuals seeking trademark registration and trademark protection must understand the GST and Financial Year are crucial aspects businesses must consider for compliance. implications at large to ensure compliance and avoid any unnecessary financial burdens in form either penalties or charges.

    Taxes on Trademark-Related Services

    The following services incur the Goods and Services Tax (GST):

    1. Legal and Consultancy Services

    Most companies will acquire the services of a legal consultant or a Trademark Search and Filing Agent for trademark registration, as it is considered a professional service. This service also incurs a GST which increases the cost of attaining trademark protection. This is another cost that has to be factored into the budget of businesses during the GST and Financial Year planning.

    2. Trademark Registration and Renewal

    Trademarks in India are legally protected for a period of ten years; thus, they should be renewed to maintain legal protection. Therefore, expenses for services related to the maintenance of trademarks which includes legal counsel and filing requests and other forms have also been incorporated in the GST. Companies that do not budget for renewals are liable to incur GST and Financial Year burdens.

    3. Licensing and Assignment of Trademarks

    Trademark owners earn income for permitting other businesses to use their trademark, whether it is through licensing or assigning. According to GST and Financial Year, the act of granting permission or associated with the transfer of rights to a trademark is also taxable. Therefore, income from licensing the trademark is taxable, so businesses must ensure they use the tax and file the appropriate returns.

    Trademark Registration and Renewals Timing

    Strategic timing of trademark applications and renewals can help businesses get the most out of GST and Financial Year. These processes may allow companies to claim input tax credits sooner, which may improve cash flow management.

    Businesses should register their trademarks by March 31 to get GST and Financial Year tax benefits in the current fiscal year. 

    Auditing Trademark Expenses Financially

    A financial audit before the end of the financial year ensures that all trademark-related expenses, including GST payments, are correctly recorded. This practice helps businesses find tax-saving opportunities, avoid compliance issues, and prepare for tax filings each year. GST Compliance of Trademark Holders for GST Compliance. Businesses involved in trademark-related transactions need to stay in compliance with GST. 

    These steps can help businesses stay compliant: 

    Businesses involved in trademark licensing need to figure out if they need to register for GST. If the turnover exceeds the prescribed limit, then GST registration is mandatory.

    • Issuing GST-Compliant Invoices: Proper invoicing ensures that businesses can claim input tax credits and comply with GST regulations.
    • Timely GST Return Filing: Businesses should file their GST returns regularly, including all trademark-related transactions, to avoid legal issues and penalties.

    Implications of Non-Compliance

    Non-compliance with GST and Financial Year regulations can have severe consequences, including:

    1. Financial Penalties

    Failing to comply with GST obligations can result in penalties, increasing the financial burden on businesses. This can be particularly challenging for startups and small enterprises with limited resources.

    2. Legal Repercussions

    Non-compliance with GST and Financial Year laws related to trademark transactions may lead to legal disputes, affecting the company’s reputation and operations. Businesses may face litigation if they fail to collect or pay GST on trademark-related services.

    3. Denial of Input Tax Credit (ITC)

    Incorrect GST and Financial Year filings or failure to claim ITC on trademark expenses can lead to higher tax liabilities. Businesses must ensure that all GST payments related to trademark services are recorded accurately to maximize tax benefits.

    Best Practices for Managing GST and Trademark Registration

    To minimize tax liabilities and ensure smooth trademark registration processes, businesses should follow these best practices:

    1. Engage Professionals

    Consulting with tax and legal professionals helps businesses navigate the complexities of GST and trademark registration. Experts can provide guidance on claiming ITC, maintaining compliance, and optimizing financial planning.

    2. Implement Efficient Accounting Systems

    Using advanced accounting software can streamline GST compliance by tracking trademark-related expenses and automating tax calculations. This reduces errors and ensures timely filing of GST returns.

    3. Regular Training and Awareness Programs

    Businesses should educate their finance and legal teams about GST regulations and their impact on trademark transactions. Regular training programs help employees stay updated on compliance requirements and avoid costly mistakes.

    4. Proactive Financial Planning

    Instead of treating trademark registration as an isolated legal requirement, businesses should integrate it into their overall financial strategy. Planning trademark-related expenses alongside GST obligations ensures a smoother and more efficient financial year-end process.

    Conclusion

    Understanding how GST affects trademark registration in India is essential for businesses looking to protect their brand while maintaining financial compliance. With the Financial Year 2024-25 approaching, strategic planning can help businesses optimize tax benefits, ensure compliance, and streamline trademark registration and renewal processes.

    By aligning GST considerations with trademark strategies, businesses can safeguard their intellectual property, minimize financial risks, and contribute to a transparent and efficient economic environment. Proactive planning and adherence to GST regulations will ultimately help businesses enhance their financial health while securing their brand identity in a competitive market.

    By implementing these strategies, businesses can not only safeguard their trademarks but also optimize their financial and tax planning to stay ahead in the ever-evolving business environment.

    Wish to read similar articles? Click the link to read more: https://legalguruindia.com/blog-how-the-new-trademark-law-changes-impact-indian-startups-in-2025/

    Link to Official Government GST Portal: https://www.gst.gov.in

    Author: Apoorva Lamba, 2nd Year LLB. Student of Madhav Mahavidyalaya, Jiwaji University, Gwalior

  • Section 12 of the Trademark Act, 1999: Registration in the Case of Honest Concurrent Use & Special Circumstances

    The purpose of the Trade Marks Act, 1999 is to grant exclusive rights to a proprietors over their originally adopted and conceived mark while preventing any unauthorised use of such protected mark by anyone other than the original adopter and lawful proprietor. However, there are certain special circumstances in which the Trade Mark Act allows for the registration of identical or similar mark in respect of similar set of goods and services to more than one person.

    This could be done only in extraordinary circumstances as enshrined under Section 12 of the Trademark Act, 1999. The said act allows multiple proprietor to obtain registration of identical or similar trademark in relation to similar goods and services in case of honest and concurrent use.  Let’s understand this provision, its applicability and meaning in detail.

    What is Honest Use under Section 12 Of The Trademark Act?

    Honest use refers to a situation where a trademark has been adopted & thereafter used by a person in good faith and with bona fide intent. A mark is said to be honestly used when the mark has been independently adopted and used without knowledge of prior-existing identical or similar marks in the market. There is no intend to deceive anyone, cause confusion vis-à-vis any prior-existing mark or ride upon anyone else’s reputation.

    What is Concurrent Use under Section 12 Of The Trademark Act?

    Concurrent use refers to a situation where the identical marks are being used by two or more persons simultaneously & parallelly co-existing over a period of time. The law recognizes that there are certain circumstances like that of concurrent use which may not create confusion among consumers, especially if both businesses operate in different geographical areas or have different trade channels. Below is small and simple example of circumstances where the provision of Section 12 of The Trademark Act may be invoked.

    Example: ‘A’, being a seller of tea in Assam, adopts & starts to use the mark ‘Turban Tea’ in its local business for 20 years, unaware regarding the prior existence & use of the same mark by another tea seller ‘B’ in Karnataka since the past 21 years. Here ‘A’s adoption and use of the mark ‘Turban Tea’ is both honest and concurrent.

    Is Section 12 a Right or a Discretion?

    Section 12 of the trademark act gives discretionary power to the Hon’ble Registrar to exercise in special circumstances of honest and concurrent use by allowing registration of similar or identical marks. Ld. Registrar has to decide this on case to case basis whether such extraordinary or special circumstances exist to exercise its discretionary powers under section 12 of the Trademark Act. The registrar has to be sufficiently satisfied regarding the Honesty and Concurrency of use to exercise its discretion. For this, the Registrar is at complete liberty to call upon the parties to present cogent and unimpeachable documentary evidence substantiating their claim of Honest & Concurrent use.

    Even after being satisfied regarding Honesty and Concurrency of use, the registrar would check whether there are other special circumstances that justify allowing the use of similar marks like geographical differentiation i.e., marks being used in different geographical territories of India, established use of similar marks in the market that have created independent distinct identities despite the similarity.

    After being satisfied regarding the grounds mentioned above, the Registrar, if it thinks fit, may allow the registration of identical or similar marks. However, whether such registration is absolute, limited or conditional also lays on the Registrar.

    Conditions, Restrictions & Limitation under Section 12 Of The Trademark Act

    Section 12 of the trademark act empowers the Registrar to impose any condition, restriction or limitation over the registration of a mark as it deems fit. This right has been granted to the Registrar to remove any chances of potential confusion that might have arisen in the past or may arise in the future. Such any condition, restriction or limitation may include:

    • Limitation as to use in certain Geographical areas.
    • Restriction as to use in a relation to specific goods and services
    • Conditions regarding the manner of packaging/presentation of the marks to avoid confusion.

    Landmark Cases on Section 12 of the Trade Marks Act, 1999

    1. Kores (India) Limited vs Khoday Eshwarsa And Son, And Anr., (1985(1)BOMCR423) https://indiankanoon.org/doc/1226902/

    • In this case, the Hon’ble Bombay High Court laid down 5 pre-requisites for grant of registration under section 12 of the trademark act i.e.,

    a. The honesty of the concurrent use, 

    b. The quantum of concurrent use shown by the petitioners having regard to the duration, area and volume and trade and to goods concerned, 

    c. The degree of confusion likely to follow from the resemblance of the applicants’ mark and the opponents’ marks.

    d. Whether any instance of confusion have in fact been proved, and 

    e. the relative inconvenience which would be caused to the parties and the amount of inconvenience which would result to the public if the applicants’ mark is registered.

      1. London Rubber Co. Ltd vs Durex Products, 1963 AIR 1882 https://indiankanoon.org/doc/1333219/ 

        The Hon’ble Supreme Court, in this case held that, there is no requirement to establish no probability of confusion. The simple fact that there has not been a single instance of confusion throughout the years of concurrent use of both the marks is enough to take the benefit of section 12 of the trademark act.

        Exceptions to Section 12 Of The Trademark Act:

        There are however certain circumstances where even after fulfilling the criteria laid down under the express provision as well the judicial pronouncements surrounding section 12 of the trademark act, registration to a mark cannot be granted. Such exceptions to the applicability of section 12 of the trademark act involve the circumstances where one mark is a well-known mark, in the case of trademark squatting, where the prior user has the bona fide plans of expansion in the same field as the later adopted mark etc. Thus, exercise of discretion under section 12 of the trademark act there is no rule of thumb and has to be decided on case to case basis.

        Conclusion: Section 12 of the Trademark Act

        Section 12 of the Trade Marks Act, 1999, provides certain amount of flexibility for businesses that have used similar or identical marks in good faith. This section ensures that the efforts, time and money spent by businesses over the honest and concurrent use and adoption of their marks do not outrightly go into vain. However, the burden rests on the Registrar to strike a balance between allowing businesses to protect their established marks and protecting the rights of honest and concurrent users. It was the total overview of Section 12 of the Trade Marks Act.

      1. SECTION 11 OF THE TRADE MARKS ACT, 1999: RELATIVE GROUNDS OF REFUSAL OF REGISTRATION

        The primary and fundamental purpose of trademarks is to act as brand identifiers creating a distinction between the goods & services provided by one person from that of the other’s in the market. This consequently necessitates that the trade mark so adopted be distinctive and capable of aiding differentiation amongst similar set of goods & services rendered by several different businesses in the market. 

        Take for instance the adoption of ‘Mahindra’ for cars which helps distinguish cars of another manufacturers such as ‘TATA’ and ‘Maruti Suzuki’ from those originating from the house of Mahindra and Mahindra.

        Thus, the provisions of Trade Marks Act, 1999 provide for certain characteristics and criteria that a mark must possess and qualify to become registrable. Under the Act, a trade mark can be refused registration on the below mentioned categories of grounds:

        1. Absolute grounds provided under section 9 of the trademark Act

        2. Relative grounds provided under section 11 of the trademark Act 

        In the Article, we shall explore the absolute grounds for refusal of trade mark, provided under the section 11 of the Trade Marks Act, 1999.

        Section 11 Of The Trade Marks Act (1):

        This subsection provides that a trade mark shall not be registered in the following case: 

        1. If it is identical to an earlier trademark or similar to goods/ services covered;
        2. If it is similar to an earlier trademark or identical to goods/ services covered,

        In such a way that it is likely to confuse the public by associating it with the earlier mark. 

        Explanation:

        According to Section 11 of the Trade Marks Act (1) , a trademark seeking registration should not be registered if it is identical or similar to the already existing mark and has similar goods or services and the similarity is such as is likely to cause confusion and association of the already existing trademark with the trademark seeking registration.

        Illustration:

        A person seeking registration of the trademark ‘COCA-COLA’ for soft drinks would not be granted registration for the same as the mark is identical and similar to the already existing ‘COCA-COLA’ mark being used for the same goods. If the registration will be granted to the new ‘COCA-COLA’ mark by different person or entity, it would cause confusion amongst the public and the public is likely to associate the goods bearing the new ‘COCA-COLA’ mark with that of the already existing mark. 

        Section 11 Of The Trade Marks Act (2):

        Section 11 of the Trade Marks Act (2) provides that a trademark applied for registration which is similar to earlier trademark can still be refused registration if the goods or services provided under both the marks are different. This clause, however, applies only if the already existing trademark is a well-known mark and the use of the new trademark applied for registration might take unfair advantage, diminish the distinctive or harm the reputation of the already existing mark. 

        Illustration:

        A person seeking registration of the trademark ‘NIKE’ for different goods (lets say, food products) would not be granted registration as the trademark ‘Nike’ is already a well-known trade mark in India. Allowing registration might result in unfair trade advantage, diminishing the distinctiveness of a well-known mark ‘Nike’ or harm the reputation of the same.

        Section 11 of the Trade Marks Act (3):

        According to section 11 of the Trade Marks Act (3) , a trademark is not entitled to registration if the trademark seeking registration causes passing off (meaning, if a trademark seeking registration infringes the rights of an already existing unregistered trade mark being used since prior date) or violates the rights protected under the Copyright Law. 

        Illustration:

        ‘A’ has been using the mark ‘Breezy shoes’ for footwears for several years, although not registered but it has gained recognition in the market. Later, ‘B’ applies for registration of the trademark ‘Breezy footwear’ for similar set of good i.e. footwears. Even though A’s mark is not registered under the Trade Marks Act, he is entitled to protect his mark under section 11 of the Trade Marks Act (3)(a) by virtue of law of passing off. 

        A company tries to register a trademark featuring a stylized version of the Mona Lisa painting as part of its logo for a fashion line. The Mona Lisa is an iconic painting by Leonardo da Vinci and is under copyright protection. Even though the company might argue that their design is original, the use of the Mona Lisa image or its likeness infringes on the copyright of the original artwork, as it is a protected creative work. Since the use of the image would violate copyright law, the Registrar would refuse the application for the trademark under Section 11 of the Trade Marks Act (3)(b), as it would be unlawful to use an image that is already protected by copyright.

        Section 11 of the Trade Marks Act (4):

        Explanation:

        According to section 11 of the Trade Marks Act (4), if the proprietor of the earlier trademark consents to the use of the new trademark applied for registration, the same may be granted registration under special circumstances under section 12.  

        Illustration:

        ‘A’ owns a registered trade mark “Swift Mobile” for mobile phone. While, ‘B’, a new company, applies to register the trade mark “Swift Mobilez” for the same products i.e. mobile phones.  B approaches A and requests permission to use the trade mark “Swift Mobilez” for their products. After negotiations, A agrees to give its consent to B for registering “Swift Mobilez”. In this case, the Registrar considers the consent provided by Company A and will allow the registration of “Swift Mobilez” under Section 11(4) of the Trade Marks Act.

        Section 11 of the Trade Marks Act (5):

        According to section 11 of the Trade Marks Act (5), no trade mark shall be automatically refused registration on the grounds of similarity as given under section 11 of the Trade Marks Act (2) or on the grounds of passing off or violation of the Copyright Law as given under section 11 of the Trade Marks Act (3), if no objections are raised on these grounds in opposition proceedings by the person filing the notice of opposition. 

        Illustration:

        A owns a registered trademark ‘TechGadget’ for electronics. Later, B applies for registration of the mark ‘TechGadget Pro’ for mobile accessories. The B’s mark ‘TechGadget Pro’ is similar to A’s mark ‘TechGadget’ and the same could cause confusion. Despite the similarity, the mark of the B will be granted  registration if no notice of opposition will be filed by the A.

        Section 11 of the Trade Marks Act (6):

        Section 11 of the Trade Marks Act (6) provides the factors which the Hon’ble Registrar must consider to determine any trademark as a well-known mark. Accordingly, the Hon’ble Registrar must consider: 

        1. Public recognition of the trade mark, especially in India 

        (Illustration: Nike is widely recognized across India due to years of advertising through TV ads, sponsorships, and influencer endorsements)

        2. Since how long and in how many regions the mark has been used. The wider and longer the use, the stronger the case for the mark being well-known.

        (Illustration: Nike has been selling its products in India for over 20 years, covering all major cities and rural areas through extensive distribution)

        3. Since how long and in how many regions the trademark has been promoted, including, advertisements, publicity, etc.

        (Illustration: Nike has been widely advertised all over India for over 20 years)

        4. Since how long and in how many regions registration or any application for registration of that trade mark under this Act has been used

        (Illustration: Nike has registered its mark in various classes across India and many other countries for footwear, clothing, and sports equipment)

        5. The history of how the trade mark has been protected in legal proceedings, particularly where the mark has been recognized as well-known by courts or the Registrar.

        (Illustration: Nike has successfully enforced its trade mark rights in multiple legal cases where it was recognized as a well-known trade mark, preventing infringement)

        Section 11 of the Trade Marks Act (7):

        In addition to the factors provided under section 11 of the Trade Marks Act (6) to determine a trademark as well-known mark, the Hon’ble Registrar also takes into consideration the factors provided under section 11 of the Trade Marks Act (7) of the Act. Section 11(7) of the Act provides following factors:

        1. Consumer Base: the number of consumers currently use or may potentially use the goods or services under the trade mark

        (Illustration: Coca-Cola is a globally recognized brand with millions of actual consumers across the world, and the number of potential consumers is vast, especially in emerging markets)

        2. Channels of Distribution: the number of intermediaries, such as distributors, suppliers, retailers, or agents, are involved in getting the goods or services to consumers

        (Illustration: Apple’s distribution channels involve numerous intermediaries, including major retail stores (like Best Buy or Walmart), online marketplaces (Amazon), and mobile carriers)

        3. Business Circles: business sectors or industry groups that engage with or use the goods or services that the trade mark applies to.

        (Illustration: Microsoft’s Windows operating system is widely recognized within the technology and software industries, with businesses, IT professionals, and developers being highly familiar with the mark)

        Section 11 of the Trade Marks Act (8):

        According to Section 11(8) of the Act, if a trade mark has been determined as a well-known trade mark by virtue of any court or registrar, then the registrar shall consider it as a well-known trademark. 

        Illustration: Suppose there is a well-known trademark, namely “Frooti”, which is globally recognized as a beverage. Now, another brand, namely “Fruti”, seeks to get registered for snacks. In such a case, the Registrar is bound to refuse the mark for the same because there already exists a globally recognized well-known trademark with the similar name. 

        Section 11 of the Trade Marks Act (9):

        Section 11(9) of the Act outlines factors that are not required to be considered by the Hon’ble Registrar while determining any trademark as a well-known trademark. According to section 11(9) of the Act:

        1. There is no requirement of use of a trademark in India to determine a trademark as a well-known mark in India

        (Illustration: The trade mark Nike have obtained widespread recognition through advertising and international promotion. Even if the trade mark Nike has not been actively used in India, it can be considered well-known in India due to its international recognition)

        2. There is no requirement for a trademark to be registered in India to determine a trademark as a well-known mark in India

        (Illustration: The trade mark ‘Betterwe’ though not registered in India can still be determined as well-known owing to its widespread use and brand recognition.)

        3. There is no requirement for application for registration of the trade mark to determine a trademark as a well-known mark in India

        (Illustration: A luxury brand like ‘LOUIS VUITTON’ might not have filed application for registration for every of its trade mark in India, but the same can still be determined as well-known mark in India owing to its brand’s strong presence in the global fashion market and its association with luxury)

        4. There is no requirement that a trade mark is well-known, registered or application for registration of such trade mark has been filed in any part of the world other than India to determine a trademark as a well-known mark in India.

        5. There is no requirement that a trade mark well-known to the public at large in India to be determined the trade mark as a well-known mark in India.

        (Illustration: The trademark ‘Rolls-Royce’ may not be known to the average consumer in India but it is highly recognized within luxury car market. This makes Rolls-Royce a well-known trade mark in India despite not being recognized by public at large)

        Section 11 of the Trade Marks Act (10):

        Section 11 of the Trade Marks Act (10) outlines important guidelines for the Registrar to follow while reviewing a trade mark registration application, especially if a notice of opposition has been filed against it. The section provides two essential factors to be considered by the Hon’ble Registrar:

        1. Protecting well-known trademarks from similar or identical marks- The Registrar is required to protect a well- known trade mark from being registered or used by others, especially if the new mark is identical or confusingly similar to the well-known trade mark.

        (Illustration: If an applicant applies for registration of the trade mark “Coca-Cola King” for the soft drinks, the Registrar will most certainly reject the application due to the mark’s similarity to Coca-Cola trade mark which is worldwide recognised and a well-known trademark. Even if the applicant plans to use the mark Coca-Cola King for different goods, there is a considerable chances of confusion)

        2. Bad Faith involved in the application or opposition, affecting the rights relating to the trade mark- When deciding on a trademark application and any opposition that is filed against it, the Registrar must also examine any bad faith on the part of either the applicant or the opponent. Bad faith refers to instances in which an application or opposition is made with dishonest, fraudulent, or inappropriate intentions.

        (Illustration: Apple Inc., the owner of the well-known trade mark “Apple” used for electronics, comes across an application for the trade mark “AppleMart” in the same class of goods (electronics). If the Hon’ble Registrar finds out that the trade mark “AppleMart” was intentionally filed by an individual seeking to profit from Apple’s reputation without intending to use the mark in good faith, the Registrar may rule that the application was filed in bad faith and reject it.

        Alternatively, if the Hon’ble Registrar finds out that the opponent has filed the notice of opposition merely to impede an applicant’s registration merely for personal reasons or with the goal to hinder rather than preserve genuine rights, this is considered bad faith, and the notice of opposition may be rejected)

        Section 11 of the Trade Marks Act (11):

        According to section 11 of the Trade Marks Act (11), if a trade mark was registered in good faith and disclosed material information to the Registrar, or if a trade mark was acquired through good faith use prior to the enactment of this Act (30 December 1999), the registration or use of that trade mark will not be affected by the fact that it is identical or similar to a well-known trademark.

        Illustration

        Brand X has been using the trade mark “EcoClean” for cleaning products since 1889. In 2010, a multinational corporation with the well-known trade mark “CleanEco” challenges X’s use of trade mark “EcoClean”, alleging it is similar to its worldwide recognised trademark. However, because X used the mark in good faith prior to the enactment of the Trade Marks Act of 1999, “EcoClean” remains valid and protected under Section 11 of the Trade Marks Act (11). Despite the fact that the trade mark “EcoClean” of the ‘X’ is similar to “CleanEco”, ‘X’ can continue to use it

        CASE LAWS

        1. Twentieth Century Fox Film Corporation vs The Registrar

        https://indiankanoon.org/doc/125674682

        The Hon’ble Delhi High Court held that mere phonetic resemblance is not sufficient to consider marks identical or similar. There has to be a likelihood of confusion caused among the public. 

        This case addresses that phonetic similarity alone cannot be the sole reason to conclude that two marks are similar, though it can contribute to the comparison. The emphasis must be on the fact that the similarity is strong enough to confuse the public, with respect to concerned goods and services.

        2. Toyota Jidosha Kabushiki Kaisha vs M/S Prius Auto Industries Limited

        https://indiankanoon.org/doc/163092085

        In this case, the trademark ‘Prius’ has gained significance long before the defendants started using and got the mark registered. However, relying on territoriality principle, it makes it necessary for the plaintiff to provide substantial evidence proving that their mark “Prius” has also acquired considerable goodwill in the domestic market of India. 

        The Hon’ble Supreme Court, in this case, emphasizes that the goodwill of a mark must be proven in the domestic market because global goodwill is not sufficient to prove establishment in the domestic market, too. It also focuses on the fact that even if the knowledge of mark exists domestically, then it must be prominent, substantial and widespread among the relevant section of the domestic market. 

        CONCLUSION

        From the aforementioned explanation, a clear understanding of the applicability of section 11 of the Trade Marks Act, 1999 can be drawn. Section 11 acts as a strong provision, barring the registrability of trademarks which are identical or deceptively similar with the prior existing trademarks.

      2. SECTION 9 OF THE TRADE MARKS ACT 1999: ABSOLUTE GROUNDS OF REFUSAL OF REGISTRATION

        Introduction 

        Trademarks include any sign, symbol, slogan, mascot, or phrase used in business that helps distinguish the goods and services of one person from another. Essentially, the purpose of a trademark is to act as a source identifier, associating the goods and services bearing a particular mark with their originating source. For example, the use of the trademark ‘Kit Kat’ serves as a source identifier for wafer chocolates originating from Nestlé. However, not all words or signs can be considered trademarks.

        Section 9 of the Trade Marks Act 1999 lays down the absolute grounds for refusal of registration, specifying the criteria and characteristics a mark must fulfill to be registrable. If a mark lacks distinctiveness, is descriptive, or falls under any prohibited category as outlined in the Act, it is liable to be refused registration. Before diving into SECTION 9 OF THE TRADE MARKS ACT 1999, let’s understand the Trade Marks Act, 1999. There are two main grounds for refusal of a trademark, namely:

        1. Absolute grounds provided under Section 9 of the Trade Msrks Act 1999
        2. Relative grounds provided under Section 11 of the Trade Marks Act

        In this article, we shall explore the absolute grounds for refusal of a trademark, provided under SECTION 9 OF THE TRADE MARKS ACT 1999. For the purpose of better comprehending the article, certain essential terms have been defined as follows:

        Basic Terminology used in Section 9

        1. Descriptive: It refers to the description with respect to character, quality, nature or purpose of the relevant goods or services. For example, marks like “Speedy services” for courier services describe the characteristic of the service concerned.  

        2. Distinctive: It refers to the inherent capability of the marks to identify a product’s source; it makes it entitled for registration. For example, marks like “Nippon” for cameras fall under a distinctive category.

        3. Customary mark: It refers to the marks that are commonly used as trade expressions in the industry. Such marks cannot be considered for registration as they are not capable enough to differentiate the product of one business from that of another. For example, “Linen Blend” for textiles. 

        4. Generic words: These are referred to the words that are most commonly used with reference to the concerned goods or services. For example, Marks like ‘Notebooks’ for stationary. 

        To understand the provision in depth and with clarity, we will deal with each sub-section separately as under:

        SECTION 9 OF THE TRADE MARKS ACT 1999(1): Lack of Distinctiveness & Descriptive Marks

        9(1)(a): This sub-section provides that a trademark shall not be entitled to registration if the mark that lacks distinctive character or does not act as a unique identifier, it includes:

        1. Likely to create confusion or lack distinctiveness  
        2. Generic or common mark for goods or services involved.

        ILLUSTRATION:

        • A generic term like “MILK” for dairy products – (Rejected)
        • A unique name like “AMUL” for dairy products – (Accepted)

        9(1)(b): This sub-section provides that a trademark shall not be entitled to registration if it describes the quality, quantity, purpose, or origin of the goods or services.

        ILLUSTRATION

        • A descriptive mark like “FRESH WATER” for water – (Rejected)
        • A unique mark like “BISLERI” for water – (Accepted)

        9(1)(c): This sub-section provides that a trademark shall not be entitled to registration if it has become customary in businesses, meaning it is commonly used in the industry that it cannot be registered. 

        ILLUSTRATION

        • “AUTO” for motor cars or any of their parts or relevant service.      (Rejected)

        Proviso of SECTION 9 OF THE TRADE MARKS ACT 1999(1): In case a mark has acquired distinctiveness due to long and extensive use or it has become well-known, it could be granted registration.

        SECTION 9 OF THE TRADE MARKS ACT 1999(2): Prohibition of Deceptive, offensive or illegal trademarks

        9(2)(a): This sub-section provides that a trademark shall not be entitled to registration if the mark can mislead or deceive the public regarding the nature, quality, or origin of goods or services.   

        ILLUSTRATION 

        • A misleading mark like “HERBAL CURE” for synthetic medicines      (Rejected)

        A genuine mark like “DABUR HERBAL” for Ayurvedic products       (Accepted)

        9(2)(b): This sub-section provides that a trademark shall not be entitled to registration if the mark is of such a nature that it could hurt the religious sentiments of the public

        ILLUSTRATION

        • A mark like “KRISHNA WHISKEY” for alcoholic beverages could be hurtful        (Rejected)
        • A distinctive mark like “ROYAL STAG” for alcoholic drinks        (Accepted)

        9(2)(c): This sub-section provides that a trademark shall not be entitled to registration if the mark is such that it contains offensive, vulgar or indecent words. A mark must align with public morality and decency standards. 

        ILLUSTRATION An offensive mark like “Naked & Nasty” for a clothing brand       (Rejected)

        9(2)(d): This sub-section provides that a trademark shall not be entitled to registration if the a mark containing names which are prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950 which are, inter alia, national emblems, government signs, and international organization names.

        ILLUSTRATION 

        • Use of Ashok Chakra or “WHO” as a mark      (Rejected)

        SECTION 9 OF THE TRADE MARKS ACT 1999(3): Prohibition of Trademarking Product Shapes

        9(3)(a): This sub-section provides that a shape mark could be registered If a product depicts its natural form, it cannot be registered. 

        ILLUSTRATION 

        • Use of Mango shape for selling Mangoes      (Rejected) 
        • “KITKAT” four-fingered shape       (Accepted)

        9(3)(b): This sub-section provides that a shape mark could be registered If a mark describes the function of the product, it cannot be registered. 

        ILLUSTRATION 

        • Ridged shape of a plastic bottle cap, which is essential for its functioning      (Rejected) 
        • Coca-Cola bottle Shape, not a essential function        (Accepted)

        9(3)(c): This sub-section provides that a shape mark could be registered If a mark is of such a shape that it adds a substantial value, meaning the shape itself is the primary reason for being preferred by the public, then it cannot be registered

        ILLUSTRATION

        • Designer Handbag Shape which influences customer choices      (Rejected)
        • A unique branding like “Toblerone” chocolate shape       (Accepted)

        Explanation of Section 9(3): It provides that the type of the goods or services associated cannot be the sole reason for the rejection of an application. The refusal must be based on the trademark. 

        ILLUSTRATION

        • Trademark “LIFELINE” for a hospital: It may be rejected for being descriptive, but not because it is used for medical services.

        CASE LAWS ON SECTION 9 OF THE TRADE MARKS ACT 1999

        1. M/S Hindustan Development Corporation Ltd. V. The Deputy Registrar of Trademarks

        https://indiankanoon.org/doc/1401045

        One case law on Section 9 where the Hon’ble Calcutta High Court observed in this case, it is true that the introduction of the word ‘direct’ shows that the mere fact that the word ‘mark’ has some reference with the goods & services does not render it outrightly incapable of registration. The Reference must be a direct one. A mere suggestive reference is not sufficient. In the present case, the mark “Rasoi”, as I have already stated, directly refers to the character of the goods which are used ordinarily for cooking purposes.

        It addresses the distinction between descriptive marks and suggestive marks, emphasizing that a mark that directly describes the product or services concerned cannot be registered, whereas marks that only suggest a connection may be allowed for registration.

        2. Lal Babu Priyadarshi vs Amritpal Singh

        https://indiankanoon.org/doc/53428453

        In this case concerning Section 9 of the Trade Marks Act 1999, the Hon’ble Supreme Court held that no single person or entity can claim exclusive trademark rights overreligious books like Quran, Bible, Guru Granth Sahib, Ramayan etc. Such names are for all and not to be monopolized as a trademark by an a single entity or person.

        The case emphasizes the use of religious texts, highlighting that such texts are not private intellectual property; rather, they are considered as sacred and universal, which falls under the public domain. Granting the registration over the names of religious books could lead to their misuse or might hurt the religious sentiments of certain communities. 

        Conclusion: SECTION 9 OF THE TRADE MARKS ACT 1999

        Registration of a mark thus not only plays the role of a regulatory requirement but further ensures the best measure to ensure the interests of business concerns and enable fair play in the market. the Trade Marks Act 1999 maintains the integrity of trade marks by preventing common, descriptive, misleading, deceptive or functional marks.  Section 9 of the Trade Marks Act 1999 safeguards both business competition and consumer interests. Understanding these absolute grounds for refusal helps businesses create strong, enforceable trademarks that stand out in the marketplace while complying with legal standards.

      3. Udyam Registration: A Step-by-Step Guide for MSMEs

        Why Udyam Registration Matters for Startups: A Launchpad for Growth

        Starting a business is always an exciting journey, but it also comes with plenty of challenges. One big hurdle for any startup is gaining credibility and access to resources, especially when competing with established players. That’s where Udyam Registration comes into play. If you’re new to this term, don’t worry – it’s simply an official certification process that classifies your business as a registered Micro, Small, or Medium Enterprise (MSME) in India. This registration isn’t just a formality; it can be a game-changer for startups. Let’s dive into why Udyam Registration matters for startups and how it can be a launchpad for your business growth.

        Boost Your Credibility and Trustworthiness

        One of the major struggles for startups is building trust, especially when you’re just starting out. Getting Udyam Registration can help with this by showing that your business meets government standards for a small or medium enterprise. It essentially adds a stamp of legitimacy to your company, which can go a long way in establishing credibility.

        Think about it – potential customers, partners, or even investors are more likely to trust a registered entity over an unregistered one. With Udyam Registration, you can display your MSME certificate, adding an extra layer of professionalism. You might even find that customers are more comfortable doing business with you when they see that you’re officially registered. For startups, this simple badge of trust can open doors to new opportunities, partnerships, and clients.

        Access Financial Support and Benefits

        Funding is the lifeline of any startup, but getting loans or grants can be a challenge without a track record. That’s another reason why Udyam Registration matters for startups. Once registered, your startup becomes eligible for various financial schemes, subsidies, and loan benefits that are otherwise reserved for MSMEs.

        For instance, registered startups often have access to priority loans through government schemes, often at lower interest rates. These loans can help you get the funding you need to expand, develop new products, or manage your day-to-day operations. Additionally, registered MSMEs are eligible for credit guarantees, which reduce the risk for banks and make it easier for you to secure funding. When you’re bootstrapping or seeking financial backing, these perks are incredibly valuable.

        Enjoy Tax Rebates and Exemptions

        Saving on taxes is always a plus, especially for startups trying to make every penny count. Udyam Registration can unlock a range of tax exemptions that are only available to MSMEs. For example, many startups find that they’re able to get a rebate on the income tax they would otherwise pay. While these rebates vary based on specific criteria, they’re often a fantastic way to reduce costs and improve your cash flow.

        Moreover, with Udyam Registration, startups can also benefit from exemptions on certain taxes and fees when they bid on government contracts. This can be a big help if you’re planning to work with public sector clients or secure government projects. Not only can these rebates and exemptions provide a financial cushion, but they also allow you to redirect funds back into your business for growth initiatives. Who doesn’t want a bit more breathing room in their budget?

        Priority in Government Contracts and Tenders

        Government contracts can be highly lucrative, but they’re usually challenging for small businesses to win, especially when up against larger companies. However, with Udyam Registration, startups can get priority access to government tenders and contracts. This special status is granted to MSMEs to encourage small businesses to take part in public sector projects.

        For startups, this is a golden opportunity. Not only does it increase your chances of landing big projects, but it also gives you a chance to grow your portfolio with reputable clients. Imagine being able to showcase a successful government project early on – it’s a fantastic trust builder and can make a big difference in how potential clients and partners view your startup. With a little bit of government support, your startup could land significant deals that fuel growth and establish a strong market presence.

        Easier Access to Technological Support and Development Programs

        For startups that want to stay competitive, keeping up with the latest technology and skills is essential. Luckily, Udyam Registration can give you access to several government programs that support technological upgrades, skill development, and infrastructure improvement. These programs are designed to help MSMEs adopt the latest tools and best practices, so you’re not left behind.

        For example, there are specific programs that provide grants or subsidies for purchasing new equipment, upgrading systems, or training your workforce in the latest technology. These benefits can be especially helpful for tech-oriented startups or those in fields like manufacturing where equipment costs are high. When you’re just starting out, being able to access resources like these can save you a lot of upfront expenses, enabling you to focus on other core areas of growth.

        Eligibility Criteria: Who Can Apply? A Simple Guide for MSMEs

        Thinking of applying for Udyam Registration but unsure if your business qualifies? You’re in the right place! Udyam Registration is designed specifically to support India’s Micro, Small, and Medium Enterprises (MSMEs). But before you dive in, it’s essential to understand the eligibility criteria. This guide will walk you through who can apply, what’s needed, and why this matter for your business. With a little clarity, you’ll see how easy it can be to determine if Udyam Registration is a good fit for you.

        Micro, Small, or Medium Enterprise? Let’s Break it Down

        The first thing to know is that Udyam Registration is open exclusively to MSMEs. But what exactly qualifies as a “Micro,” “Small,” or “Medium” enterprise? The answer lies in two key factors: your business’s investment in plant and machinery or equipment, and its annual turnover.

        Micro Enterprises are the smallest category, perfect for tiny businesses and startups just getting off the ground. To qualify as a Micro Enterprise, your business should have an investment of up to ₹1 crore in equipment or machinery and an annual turnover of up to ₹5 crore. If your business fits this bill, you’re set to register as a Micro Enterprise!

        Small Enterprises are a step up, designed for growing businesses with a bit more capital and income. Small businesses can have an investment of up to ₹10 crore and a turnover of up to ₹50 crore. If you’re expanding and seeing more revenue, you might qualify as a Small Enterprise.

        Medium Enterprises are the largest eligible category for Udyam Registration. These businesses can have an investment of up to ₹50 crore and a turnover of up to ₹250 crore. If your business is thriving but still falls under these limits, you’re eligible for registration as a Medium Enterprise.

        Knowing where your business fits in can help simplify your application. Just check your investment and turnover figures, and you’ll have a good idea of which category to choose!

        Sole Proprietors, Partnerships, and More: Types of Entities Eligible

        One of the great things about Udyam Registration is that it’s open to many types of business structures. So, whether you’re a sole proprietor, running a partnership firm, or operating as a private limited company, you can apply. Udyam Registration recognizes that businesses come in all shapes and sizes, so it’s designed to accommodate different setups.

        Sole proprietors are individuals who own and run their business alone. If you’re a solo entrepreneur, Udyam Registration is a great fit and can help you gain some of the perks typically available to larger companies.

        Partnerships are also eligible, allowing small teams of co-founders or partners to access MSME benefits. If you and a few others have pooled your resources and created a small business, you’re on the right track with Udyam.

        Private limited companies and limited liability partnerships (LLPs) can also apply for Udyam Registration if they meet the MSME criteria. Even if your business has a more complex structure, Udyam is inclusive enough to support your application. This flexibility means that as long as your business meets the investment and turnover thresholds, your company’s legal structure won’t hold you back.

        Documents You’ll Need: A Quick Checklist

        If you’ve decided that your business qualifies based on the eligibility criteria, it’s time to gather the right documents. Fortunately, the Udyam Registration process is pretty straightforward and doesn’t require a mountain of paperwork. Here’s a quick checklist of what you’ll need:

        1. Aadhaar Card: For individuals applying as sole proprietors, your Aadhaar card will serve as your primary identification. This is necessary for linking your registration to your business identity.
        2. Business PAN: If your business is a partnership, LLP, or company, you’ll need a PAN card in the name of your business entity. This helps verify your business’s financial details.
        3. GST Number (optional): While a GST number is recommended, it’s not mandatory. However, having it can help streamline your application and make things easier if your business deals with GST.
        4. Bank Details: Basic bank details such as your business’s bank account number and IFSC code will also be required to complete your registration. This is essential for receiving benefits or payments tied to Udyam.

        Make sure you have these documents ready and accessible. With everything in place, you can go through the registration process smoothly and without delays.

        How to Register: A Simple Walkthrough for Udyam Registration

        Thinking about registering your business under Udyam but feeling overwhelmed? Don’t worry – registering for Udyam is easier than you might think. This step-by-step walkthrough is here to make the whole process simple and stress-free. In a few straightforward steps, you’ll go from preparing your documents to being officially registered as an MSME (Micro, Small, or Medium Enterprise) in India. So grab a cup of coffee, get comfortable, and let’s walk through the Udyam Registration process together!

        Step 1: Gather Your Documents Before You Begin

        Before you jump into the registration, take a few minutes to gather the necessary documents. Starting with everything in hand will make the process much smoother!

        To register on the Udyam portal, you’ll need your Aadhaar number if you’re a sole proprietor, or a PAN card if your business is a partnership or company. Your Aadhaar or PAN acts as your main identification, linking your application to your business. It’s also recommended to have your GST Number (if applicable) and bank account details ready, as these make it easier to complete your registration and access benefits later on.

        Once you have these documents ready, you’re already halfway there! Think of this as packing for a short trip – it’s always smoother when you know what you need beforehand.

        Step 2: Head to the Udyam Registration Portal

        Now that you’re armed with your documents, it’s time to head over to the official Udyam Registration Portal udyamregistration.gov.in. The portal is the only place to register, so be cautious of any other websites offering to do it for you. Many third-party sites might charge you for services that are entirely free on the official portal.

        Once you’re on the portal, you’ll see options for new MSME registration and registration for existing enterprises. Since this is likely your first time registering, go ahead and click on the “For New Entrepreneurs” section. The site’s design is straightforward, so you won’t need to worry about getting lost. This section will guide you to a page where you can enter your details and start the official registration process.

        On the homepage, click the option ‘For new entrepreneurs who are not registered yet as MSME or those with EM-II.

        Step 3: Fill in Your Aadhaar and Business Details

        This step is where you’ll really start filling out the application form. If you’re a sole proprietor, simply enter your Aadhaar number and business name as prompted. If your business is a partnership or company, you’ll need the PAN of the organization and details of one of the authorized signatories.

        After entering these, the portal will prompt you to fill out your business details, including your business location, type of organization, and industry sector. Take a few moments to check each entry – a small typo here can lead to delays or complications later. There’s no need to rush; the portal autosaves, so you have some flexibility to double-check your information.

        If you’re unsure about any of the fields, the Udyam portal provides helpful tips next to each box. Think of it as having a virtual assistant guiding you along. Simply click on the question mark icons to get short explanations of what each field requires.

        Step 4: Enter Investment and Turnover Details

        In this section, you’ll need to enter your investment in equipment or machinery and annual turnover. These numbers are essential, as they help determine whether your business qualifies as a Micro, Small, or Medium Enterprise. Be sure to use accurate figures based on your financial records.

        If you’re unsure about your business’s exact numbers, don’t worry – a rough estimate usually works as long as it’s within the ballpark. Remember, these figures are used to assess the scale of your business, so the government knows what support you qualify for. Having realistic numbers will also help you benefit from the appropriate schemes.

        Step 5: Cross-Check and Submit Your Application

        Once you’ve filled in every field, it’s time to review everything. Think of this as the final check before hitting “submit.” Make sure all details, such as your Aadhaar number, PAN, and business information, are accurate. Small mistakes, like a misspelled name or wrong business address, can cause delays in your application.

        After the final check, go ahead and click Submit! Once submitted, you’ll receive a reference number, which confirms that your application is in progress. Keep this reference number handy; it’s like a receipt for your registration. If there are any updates or issues, this number will help you track down your application.

        Step 6: Receive Your Udyam Registration Certificate

        Once you submit your application, the waiting game begins – but don’t worry, it’s typically a short wait! Your application will be reviewed, and, if everything checks out, you’ll receive your Udyam Registration Certificate directly by email. This certificate is the official document confirming that your business is now recognized as an MSME under Udyam Registration.

        The certificate will include your unique Udyam Registration Number (URN), which is essential for accessing the benefits and schemes available to registered MSMEs. Keep it safe! This document is your ticket to government programs, financial assistance, tax rebates, and other perks designed to support small businesses.

        Process of Udyam Registration Certificate Download

        For Udyam Registration certificate download, follow these steps:

        Step-1 Visit the Udyam Registration Portal: Go to the official Udyam Registration website.

        Step-2 Access the Udyog Aadhar Download Section: On the homepage, locate the “Print/Verify” section, then select “Print Udyog Aadhar.”

        Step-3 Enter Udyog Aadhar Number and Mobile Number: Provide your unique Udyog Aadhar number and the registered mobile number associated with it.

        Step-4 Generate OTP: An OTP (One-Time Password) will be sent to your registered mobile number. Enter the OTP in the designated field.

        Step-5 Download the Certificate: Once verified, you can view and complete your Udyog Aadhar download certificate in PDF format.

        For more information click here to visit TMWala’s Udyam Registration Page.