In this article we will understand the regulatory provisions surrounding the name under which a business can operate and the registered name of the company.
As a common consumer who watches advertisements and shops at retail outlets, it is easy to presume that the company selling the product shares the same name as the brand of the products it sells. But this is not true. And many entrepreneurs are mislead or confused by this presumption while deciding on the name of the company. And many times, when a business’ registered name and brand name are one and the same, it can cause difficulties and restrictions in making operational and strategic decisions. So it is not only possible to operate your business in using a brand name that is different from the registered name but also advisable to do so for many reasons. Let us take a look at some
Benefits Of Choosing A Different Name
Allows diversification – When a company chooses a brand name for a product, it does so with the intention of creating a relatability factor with the product itself. In other words, the name of the product should be relatable to the nature of the product. So if the name of the product is the same as the company’s name, then the company is stuck with the restriction of selling products that relate to the name. However, if a company chooses a more generic name as its registered name, then it allows it to sell a diverse range of products under different brand names without being associated to a specific sector or vertical
Provides indemnity – When the name of the product is not the same as the registered name of the business, it indemnifies the business from any sort of negative public perception towards the product. Let us say for instance for some reason, directly orr indirectly, the product suffers some kind of negative perception. If the company’s name is not synonymous to the product, then the company can shut down the product and sell something else or rebrand the product to negate the public perception.
Easier to get company name registered – Even if a company operates in a way that the company itself is the brand, it may cause problems while trying to get the name registered while incorporation because someone might have already chosen a similar name for the company. In such a case many people choose to register the company under another generic name and then proceed to sell the product with the intended brand name to avoid the technicality of name registration.
Essentials To Know Before Choosing A Trademark Name
In India, the Trademarks Act governs the process of grant of a trademark. It is the Registrar of Trademarks who is the authority for the first grant of a trademark.
Here are five handy tips to help you choose a trademark and avoid the risk of a trademark dispute or rejection at a later stage
1. Choosing and using your trademark fast
The law of trademark gives primacy to the firm that has established first use. The proof of “prior use” in the trademark is likely to give you an edge over a competitor or another person using the same mark. This primacy to prior use often supersedes registration. Thus, if you started using the name first and someone else possesses a trademark registration for the name, the courts may still award the trademark to you.
2. Doing a trademark search before applying for registration
It is a good idea to first run a trademark search to see if there exists any similarity in the trademark sought to be registered by you. A word mark search traces the similarity in words, sentences, or phrases used in your trademark. However, you will also need to do a phonetic search for verbal similarity. You can also use the free trademark search facility at Vakilsearch.
3. Identifying similarity with existing trademarks
This is probably one of the greyest areas of trademark registration, often leading to disputes. Take, for instance, the word “Nirma”, which is a well-known trademark business for washing powder. However, this does not mean that no firm in any industry can choose the word “Nirma”. While a washing powder or chemical company would be disallowed from using this word, a company operating in another industry can still make a case for trademark registration. Moreover, similar-sounding names such as Nirmal, Nirman, and Nirmax are also trademarks that have been granted registration.
4. Making an application to the registrar
The trademark registration or business registration works on a system of “class of goods” where goods of one kind that clubs under one class. Correctly classifying your product under the appropriate class is also important. The Registrar would then begin the process of assessment to see if your mark aligns closely with any other already registered mark. Based on this assessment, your trademark may be refused.
5. Responding to a trademark objection
In case of a trademark query regarding similarity with another mark, demonstrating differences in your mark from an existing trademark would be essential. Providing evidence of the use of your mark, establishing its distinctiveness through market share, accurately describing the ingredients of the mark are some of the ways. Every trademark objection or refusal response must be tailored with adequate proof to show that the two marks belong to different categories of goods or different industry, business, or trade.
Conclusion
There are standard guidelines issued by the ministry of corporate affairs with regard to registering a name. But the guidelines are very voluminous and may not always make sense to an untrained mind. That is why there are professional courses for legal matters where such concepts are taught in detail. So it is always advisable to seek the guidance of a trained professional when choosing a name for your company or your trademark so that the registration process does not get unnecessarily delayed and you can begin operating your business immediately. If you have any other queries with regards to corporate regulatory matters or need some guidance with naming your company or trademarking your name, then get in touch with us so our team of experts can help guide with all your queries and requirements.
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FAQs
Can the company name and brand name be different?
Yes, the company name and brand name can be different, offering flexibility in branding strategies and product lines.
Does a brand name need to be registered?
Registering a brand name is not mandatory, but it provides legal protection and prevents others from using a similar name in your industry.
Can you use a different name for a business name?
Yes, you can use a different name for your business, known as a 'doing business as' (DBA) name or trade name, which can be separate from the legal entity's name.
Can your logo be different from your business name?
Yes, your logo can be distinct from your business name, providing visual identity and recognition that complements your brand.
Should my brand name be the same as my company name?
While your brand name doesn't have to be the same as your company name, consistency can enhance brand recognition and consumer trust.
What are the 7 types of brand names?
The 7 types of brand names include descriptive, suggestive, arbitrary, fanciful, coined, combination, and geographic names, each with its own branding advantages.
Can I use another brand's logo?
Using another brand's logo without permission is generally a violation of copyright and trademark laws unless you have obtained proper authorisation or licensing.
Can two brands have the same logo?
Two brands having the same logo can lead to confusion and potential legal issues, making it advisable to create unique and distinguishable logos.
How do I know if a brand name is taken?
Check brand name availability by conducting a comprehensive trademark search, including online databases and consulting with a legal professional like Vakilsearch for thorough verification.
What is the rule in choosing a brand name?
When choosing a brand name, consider factors like memorability, pronounceability, relevance to your business, distinctiveness, legal availability, cultural implications, and international suitability.
Can I name my brand after another brand?
Naming your brand after another existing brand can lead to legal issues like trademark infringement, dilution, or consumer confusion.
What are the conditions for a brand name?
Conditions for a brand name include legal availability, distinctiveness, alignment with brand identity, cultural considerations, trademark registration, and potential for long-term branding.
What are the 6 criteria for choosing a brand name?
The 6 criteria for choosing a brand name involve legality, distinctiveness, memorability, pronounceability, relevance, and versatility for future growth and expansion.
Can two companies have the same brand name?
While two companies can have the same brand name, it's advisable to choose a unique name to avoid confusion and potential legal disputes, especially within the same industry or market.
