Proprietor vs. partnership vs. company: getting the applicant name right

1. Introduction: The Field You Cannot Quietly Fix Later

Form TM-A asks a question that looks like paperwork and is actually a decision about ownership: who is the applicant?

Most people answer it carelessly. The founder writes their own name because they filled the form themselves. Or they write “M/s Sharma Enterprises” because that is what the shop board says. Or they write the private limited company’s name because it sounds more official, even though every invoice for the last four years was issued by a proprietorship. Or they write the partnership firm’s trading style without listing the partners, because nobody told them Rule 15(2) exists.

Each of these is a different problem, and none of them is the kind of problem that can be corrected with a phone call.

Here is why. Section 18(1) of the Trade Marks Act, 1999 permits an application by a person “claiming to be the proprietor” of the mark. Proprietorship is a substantive assertion, not a form field. If the applicant named on the form is not the person who owns the mark — because the mark was adopted and used by a different entity — the application is defective at its foundation. And unlike a typographical slip, a wrong applicant cannot be “corrected.” Under Rule 37 of the Trade Marks Rules, 2017, the Registrar may permit correction of errors and amendment of an application, but substituting a different proprietor is not a correction. It is a transfer of ownership, which requires a deed, stamp duty, and recordal with the Registry.

The practical consequence is blunt: the cost of fixing a wrong applicant name routinely exceeds the cost of the original filing, and it introduces a chain-of-title question that will be raised in every future dispute, every due diligence exercise, and every opposition.

This article works through each applicant category recognised on Form TM-A, what the Act and Rules require for each, the fee consequences, what actually goes wrong when the name is wrong, how the error can and cannot be repaired, how business restructuring affects an existing registration, and how to decide who should own the mark in the first place.

This is general information on Indian trade mark practice as of 2026, not legal advice. Fees and procedural details change; verify against ipindia.gov.in before filing.

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2. The Statutory Framework

2.1 Section 18(1): Proprietorship Is the Foundation

Section 18(1) provides that any person claiming to be the proprietor of a trade mark used or proposed to be used by him, who is desirous of registering it, shall apply in writing to the Registrar.

The application does not create proprietorship. It asserts it. And proprietorship, in Indian law, follows adoption and use — the person who first adopted the mark and used it in the course of trade. If your invoices, packaging, advertising, and licences are in the name of Entity A, then Entity A is the proprietor, regardless of whose name goes on Form TM-A.

2.2 Rule 15: The Particulars Required

Rule 15 of the Trade Marks Rules, 2017 sets out the identification requirements. Three sub-rules matter directly:

• Rule 15(2): In the case of a partnership firm, the full name and nationality of every partner shall be given.
• Rule 15(3): Applicants from a convention country and persons with no principal place of business in India must give their home-country address in addition to an address for service in India.
• Rule 15(4): In the case of a body corporate or firm, the country of incorporation or the nature of registration, as the case may be, shall be given.

Rule 15(2) is the one most often violated. A partnership application naming only “M/s Kumar Brothers” without listing the partners is deficient on the face of the Rules.

2.3 Rule 16: Principal Place of Business Determines Jurisdiction

Rule 16 requires every application to state the applicant’s principal place of business in India, and this becomes the applicant’s address. Read with Rules 3 and 4, the principal place of business determines which office of the Trade Marks Registry — Delhi, Mumbai, Kolkata, Chennai or Ahmedabad — has jurisdiction over the application. For joint applicants, it is the principal place of business of the applicant named first.

Get this wrong and the application may be filed at the wrong Registry office, causing delay and transfer.

2.4 Section 145: Who May Act on the Applicant’s Behalf

Section 145 identifies who may act before the Registrar on an applicant’s behalf: a legal practitioner, a person registered as a trade marks agent, or a person in the sole and regular employment of the applicant. Each of these is a natural person. A firm as such is not a Section 145 category, which is why powers of attorney on Form TM-48 are executed in favour of named individuals.

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3. The Applicant Categories on Form TM-A

Form TM-A offers a set of applicant categories. In practice, the ones that matter are:

1. Individual
2. Sole proprietorship
3. Partnership firm
4. Limited Liability Partnership (LLP)
5. Private limited / public limited company
6. Hindu Undivided Family (HUF)
7. Trust
8. Society / association
9. Body incorporated outside India / foreign entity
10. Government department, statutory body or public sector undertaking

Cutting across these are two fee categories that are not entity types at all but frequently get confused with them: DPIIT-recognised startup and Udyam-registered micro/small enterprise.

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4. Category by Category

4.1 Individual and Sole Proprietorship

Who the applicant is: the individual human being. Not the shop name.

This is the single most misunderstood point in Indian trade mark filing. A sole proprietorship has no separate legal existence. “M/s Sharma Enterprises” is a trading style, not a legal person. It cannot own property, cannot sue in its own name independently of its proprietor, and cannot be the proprietor of a trade mark in any meaningful sense.

How to name it correctly: the standard formulation is the individual’s full legal name, followed by the trading style — for example, “Rajesh Kumar Sharma trading as Sharma Enterprises.” The trading style is recorded, but the legal applicant is the individual.

Documents: PAN, Aadhaar or other identity proof of the individual; Udyam registration certificate if claiming the concessional fee; GST registration where the trading style is used.

Fee: the concessional rate applies — currently ₹4,500 per class for e-filing.

Advantages: cheapest filing; simplest documentation; no dissolution risk; ownership survives changes in business structure because the individual persists.

Disadvantages: the mark sits in a personal estate, which raises succession questions on death; it is separated from the operating business, which complicates investment and sale; and it requires a licence or permitted-use arrangement if a company later uses the mark.

The most common error: filing in the name of the trading style alone, without naming the individual. This creates an applicant that does not legally exist.

4.2 Partnership Firm

Who the applicant is: the firm, but Rule 15(2) requires the full name and nationality of every partner to be stated. In practice, the application is made in the firm’s name with all partners identified.

Documents: partnership deed; identity proof of all partners; firm’s PAN; registration certificate if the firm is registered under the Indian Partnership Act, 1932; Udyam certificate for the fee concession. Where a minor is admitted to the benefits of the partnership, the guardian’s name is also stated.

Fee: partnership firms that hold Udyam registration as a micro or small enterprise qualify for the concessional rate. Verify the entity’s own registration status; the concession does not flow from the partners’ individual status.

The registered vs unregistered question. Section 69 of the Indian Partnership Act, 1932 restricts an unregistered firm’s ability to sue to enforce contractual rights. This causes a recurring worry: can an unregistered firm enforce its trade mark?

The answer is yes. The Supreme Court in Haldiram Bhujiawala v. Anand Kumar Deepak Kumar, (2000) 3 SCC 250, held that a suit for infringement or passing off is founded on a statutory or common law right, not on a right arising from a contract, and is therefore not barred by Section 69(2). Registration of the firm remains advisable for many other reasons, but it is not a precondition to trade mark enforcement.

The real risk with partnerships: reconstitution. Partners retire, join, and die. Each reconstitution technically alters the firm. If the Register still lists partners who left in 2019, the chain of title becomes messy exactly when it matters. Update the Registry on reconstitution.

Dissolution risk: if the firm dissolves without expressly dealing with the trade mark, ownership becomes a dispute between former partners. Partnership deeds should expressly address IP ownership on dissolution. This is one of the most common sources of Indian trade mark litigation between family members.

4.3 Limited Liability Partnership (LLP)

Who the applicant is: the LLP itself. Unlike a general partnership, an LLP under the Limited Liability Partnership Act, 2008 is a body corporate with perpetual succession and a separate legal personality.

Documents: certificate of incorporation; LLP agreement; LLPIN; designated partners’ details; board or partners’ resolution authorising the filing; Udyam certificate if applicable.

Fee: an LLP is not automatically entitled to the concessional rate. It qualifies only if it holds Udyam registration as a micro or small enterprise, or DPIIT startup recognition. Otherwise it pays the higher rate — currently ₹9,000 per class for e-filing.

Advantages over a general partnership: separate legal personality, so partner changes do not disturb ownership; perpetual succession; cleaner in due diligence.

4.4 Private Limited and Public Limited Companies

Who the applicant is: the company, in its exact registered name as it appears on the certificate of incorporation — including “Private Limited” or “Limited”, spelled out or abbreviated exactly as registered.

Documents: certificate of incorporation; CIN; board resolution or authorisation for the signatory; Form TM-48 in favour of the agent; DPIIT recognition certificate or Udyam certificate if claiming the concession.

Fee: the higher rate applies unless the company holds DPIIT startup recognition or Udyam registration as a micro or small enterprise.

Advantages: perpetual succession; the mark sits with the operating business, which is what investors, acquirers and lenders expect; clean licensing and assignment; the mark appears on the balance sheet as a company asset.

The most common error: a name mismatch. “ABC Technologies Pvt. Ltd.” on the application when the certificate of incorporation says “ABC Technologies Private Limited,” or a company name that changed after filing without the change being recorded. Copy the name character-for-character from the certificate of incorporation.

The second most common error: filing in the company’s name when the mark was actually adopted and used by the founder’s earlier proprietorship, with no assignment on record. The user date then cannot be supported, because the invoices are in a different name.

4.5 Hindu Undivided Family (HUF)

Who the applicant is: the HUF, acting through its Karta.

Documents: HUF PAN; a declaration or deed identifying the Karta and coparceners; the Karta’s identity proof.

Practical note: HUF applications are relatively uncommon and can attract queries at examination. They are used mainly in family businesses where the HUF is the actual trading entity. Where the business is genuinely run by the HUF, this is the correct applicant; where it is not, do not use it merely to access the concessional fee.

4.6 Trusts, Societies and Section 8 Companies

Who the applicant is: the trust (acting through its trustees), the society (registered under the Societies Registration Act, 1860 or the relevant state Act), or the Section 8 company.

Documents: trust deed or memorandum and rules; registration certificate; resolution of the trustees or governing body authorising the filing; details of the authorised signatory.

Practical note: educational institutions, hospitals, NGOs and religious organisations fall here. Ensure the signatory’s authority is clearly documented, because trustee bodies change and disputes over who could authorise a filing are common.

4.7 Joint Applicants

Section 24 governs joint ownership. In substance, a trade mark is not to be registered in the names of two or more persons as joint proprietors unless the mark is used, or proposed to be used, by them jointly in the course of trade — that is, in relation to goods or services with which none of them separately is connected.

This is a real limitation and it is regularly misunderstood. Two friends who each run their own business cannot simply co-own a mark as a convenience. Joint proprietorship requires a genuine joint trading relationship.

Where joint ownership works: genuine joint ventures, co-branded products with shared control, family businesses trading as a single undertaking.

Where it causes trouble: co-founders who later separate. Joint ownership means neither can license, assign, or enforce cleanly without the other. It is one of the most difficult structures to unwind. Where the relationship may not last, a single-owner structure with a licence to the other is usually cleaner.

Practical note: for joint applicants, Rule 16 makes the principal place of business of the first-named applicant determinative for jurisdiction and for service of communications.

4.8 Foreign Applicants

Who the applicant is: the foreign body corporate or individual, in its exact registered name, with Rule 15(4) requiring the country of incorporation or nature of registration to be stated.

Address for service: Rule 15(3) requires the home-country address plus an address for service in India. Foreign applicants without a principal place of business in India must have an Indian address for service; the appropriate Registry office is determined by that address.

Fee: the higher rate. Foreign entities do not qualify for the Indian MSME/startup concessions.

Documents: proof of incorporation; Form TM-48 power of attorney, often requiring notarisation and, depending on the jurisdiction, legalisation or apostille; priority documents if a convention claim is made.

A substantive point: a foreign applicant claiming a user date in India must show use in India. Global sales are not Indian use. Following Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd., (2018) 2 SCC 1, the territoriality principle requires goodwill within India.

4.9 Government Bodies and Statutory Corporations

Named as constituted under the relevant statute, with authorisation from the competent authority. Straightforward, but ensure the entity named is the statutory body itself rather than a department or scheme name.

4.10 Startups and MSMEs: A Fee Category, Not an Entity

DPIIT startup recognition and Udyam registration are not applicant types. They are status certificates that unlock the concessional fee for whatever entity holds them.

Three rules that save money and prevent deficiency notices:

1. The status attaches to the applicant entity, not to its founders. A company whose promoter holds Udyam registration personally does not thereby qualify.
2. Obtain the certificate before filing. The certificate must be uploaded with Form TM-A. Retrospective claims cause deficiency objections and fee shortfall notices.
3. The concession applies per class, so on a multi-class filing the saving multiplies — but the fee remains payable per class either way.

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5. The Trading Style Trap

The single most frequent filing error in India deserves its own section.

A trading style — “M/s Royal Foods,” “Krishna Traders,” “Sunrise Enterprises” — is a name a business trades under. Unless that name is itself the registered name of a company or LLP, it is not a legal person.

Filing “M/s Royal Foods” as the applicant, with nothing more, names an entity that does not legally exist. The consequences:

• The Registry may raise an objection requiring clarification of the applicant’s constitution.
• If it proceeds, the registration stands in the name of a non-existent person, which is a rectification target under Section 57.
• Assignment becomes complicated, because a non-person cannot execute a deed.
• Enforcement becomes complicated, because standing to sue is unclear.
• Due diligence flags it immediately.

The fix is trivial if done at filing: name the legal person and record the trading style. “Rajesh Kumar Sharma trading as Royal Foods” for a proprietorship; “Royal Foods, a partnership firm comprising A, B and C” with all partners named under Rule 15(2); “Royal Foods Private Limited” only if that is the actual incorporated name.

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6. What Goes Wrong When the Applicant Name Is Wrong

6.1 Non-Proprietorship Objections and Oppositions

Section 18(1) requires the applicant to claim proprietorship. An opponent under Section 21 will plead that the applicant is not the proprietor because the mark was adopted and used by a different entity. This is a standard opening pleading and it is easy to establish when the invoices name one entity and the application names another.

6.2 The User Date Collapses

Where prior use is claimed, Rule 25(2) requires an affidavit with supporting documents. If the applicant is “ABC Technologies Private Limited” (incorporated 2022) but the invoices from 2016 to 2022 are in the name of the founder’s proprietorship, the user date claim fails unless the chain of title is documented and pleaded. An unexplained mismatch between the entity on the earliest invoices and the applicant is the most common reason Indian user claims collapse.

The fix is not difficult, but it must be done and disclosed: a deed of assignment or business transfer document transferring the mark from the proprietorship to the company, exhibited with the affidavit and expressly explained.

6.3 Non-Use Exposure Under Section 47

Section 47 addresses the absence of bona fide use by the proprietor. Where the registered proprietor is a holding company and all actual use is by an operating subsidiary with no licence, registered user entry under Sections 48–49, or documented permitted use within Section 2(1)(r), the registration is exposed. Use by a licensee enures to the proprietor’s benefit only where there is a legal bridge — and the bridge must be documented, with quality-control provisions and evidence of actual supervision.

6.4 Enforcement Standing

When it is time to sue, the plaintiff must be the registered proprietor (for infringement under Section 29) or the owner of the goodwill (for passing off). A mismatch between the registered proprietor and the trading entity forces awkward workarounds: joining multiple plaintiffs, producing licence documents mid-litigation, or facing a preliminary objection on standing. Defendants raise this routinely.

6.5 Transactions and Due Diligence

Investors, acquirers and lenders check whether the operating company actually owns its brand. A mark sitting in a founder’s personal name, or in a dissolved partnership, or in a company whose name has since changed without recordal, becomes a condition precedent to closing — resolved at speed, under pressure, at cost.

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7. Fixing a Wrong Applicant Name: Two Very Different Paths

7.1 Path One — Correction (Cheap, Limited)

Rule 37 of the Trade Marks Rules, 2017 permits correction of errors in, and amendment of, an application before registration, on Form TM-M, read with Section 22. After registration, Section 58 permits correction of the register, including correction of an error in the name, address or description of the registered proprietor, on Form TM-P.

What correction covers:

• Typographical errors — “Technologes” for “Technologies”
• Expansion or contraction of the registered name to match the incorporation certificate — “Pvt. Ltd.” to “Private Limited”
• Correcting the entity descriptor where the underlying legal person is the same
• Adding the trading style alongside a correctly named individual
• Change of address
• A change of name of the same legal person — a company that changed its name under the Companies Act remains the same legal person, so this is a correction, not a transfer

What correction does not cover: substituting a different legal person as applicant. Rule 37 does not permit an amendment that substantially alters the application, and changing the proprietor is not a correction.

7.2 Path Two — Assignment (Expensive, Necessary)

Where the wrong legal person was named, the mark must actually be transferred:

• For a pending application or an unregistered mark, assignment is governed by Section 39.
• For a registered mark, assignment is governed by Section 45, and the assignee must apply to the Registrar to register their title.

Both routes require a deed of assignment, payment of stamp duty under the applicable state Stamp Act, and recordal with the Registry on Form TM-P with the prescribed fee.

The combined cost — deed drafting, stamp duty, Registry fee, professional fee, and the months of processing time — routinely exceeds the original filing fee, sometimes by a wide margin. And the recordal creates a permanent, visible entry in the chain of title that every future opponent will examine.

7.3 The Practical Lesson

Decide ownership before filing, not after. Ten minutes of thought about who actually owns the mark costs nothing. Correcting it later costs money, time, and evidentiary cleanliness.

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8. When the Business Changes: Keeping the Register Current

Business structures evolve. Each of these events requires attention to the trade mark record.

8.1 Sole Proprietorship → Partnership

The individual proprietor and the firm are different persons. The mark must be assigned to the firm, or the partnership deed must expressly record the contribution of the mark to the firm as capital. Record the change with the Registry. Without this, the firm has no title and the individual’s user date does not enure to it.

8.2 Partnership → LLP

Conversion under the Second Schedule to the Limited Liability Partnership Act, 2008 causes the firm’s property to vest in the LLP by operation of law. The transfer therefore happens statutorily — but the Register still needs updating. File Form TM-P with the conversion certificate and the registrar of companies documentation.

8.3 Proprietorship or Firm → Private Limited Company

Conversion under Chapter XXI (Section 366) of the Companies Act, 2013 similarly vests the business’s property in the company. Alternatively, where the business is transferred by agreement rather than statutory conversion, an express deed of assignment is required. Either way, update the Registry.

This is the most common transition in Indian startups, and the one most often left undone. The result is a company whose entire brand equity sits, on paper, with a proprietorship that no longer trades.

8.4 Change of Company Name

The company remains the same legal person. This is a correction under Section 58, not an assignment. File Form TM-P with the fresh certificate of incorporation consequent upon change of name.

8.5 Merger, Amalgamation and Demerger

The mark passes by transmission under the scheme. Record it with the Registry, attaching the scheme and the court or tribunal order.

8.6 Reconstitution of a Partnership

Admission, retirement or death of a partner alters the firm’s composition. Given Rule 15(2)’s requirement to name every partner, update the record so that the Register reflects the current constitution.

8.7 Death of an Individual Proprietor

The mark passes by succession. Record it with probate, a succession certificate, a will, or a family settlement deed, as applicable. Marks held in personal names are frequently lost or disputed at this stage because nothing was recorded.

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9. Group Structures: Who Should Own the Mark?

9.1 The Operating Company Model

The company that trades under the mark owns it. Simple, evidentially clean, and what investors expect. Use, invoices, advertising, and proprietorship all sit in one name. Non-use exposure is minimal.

Best for: most single-entity businesses.

9.2 The IP Holding Company Model

A separate holding entity owns the brand and licenses it to operating companies, often for a royalty.

Advantages: insulates the brand from operating-company liabilities; centralises control across group companies and jurisdictions; can be tax-efficient; simplifies group-wide licensing.

Critical requirement: the licences must be real and documented. Use by a licensee enures to the proprietor only where the proprietor controls the quality and character of the goods or services. Prepare written licence agreements with quality-control provisions, keep evidence of actual supervision, and consider recording licensees as registered users under Sections 48–49. Without this, the holding company faces a Section 47 non-use attack, because the proprietor itself never trades.

Best for: groups with multiple operating entities, franchisors, and businesses with international structures.

9.3 The Founder-in-Personal-Name Model

The founder holds the mark personally and licenses it to the company.

Advantages: the lowest filing fee; the brand survives if the company is wound up; the founder retains control.

Disadvantages: investors object, because the company’s core asset sits outside the company; it creates a related-party licensing arrangement requiring disclosure and, often, board and shareholder approvals; it raises succession and matrimonial-property questions; and it typically becomes a condition precedent in any funding round.

Best for: pre-incorporation filings and very early-stage sole ventures — with a clear plan to transfer the mark into the company later, and a budget for doing so.

9.4 Pre-Incorporation Filings

Where a business is being formed but is not yet incorporated, filing in the promoter’s individual name is legitimate and often unavoidable — the company does not yet exist and cannot hold property. Plan the assignment into the company as part of the incorporation workstream, and budget for the stamp duty.

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10. Documentation Checklist by Applicant Type

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11. Common Mistakes

1. Naming the trading style as the applicant when it is not a company or LLP.
2. Omitting partners in a partnership application, contrary to Rule 15(2).
3. Name mismatch with the incorporation certificate — abbreviations, punctuation, or a post-filing name change not recorded.
4. Filing in the company’s name when the use was by a proprietorship, without an assignment, destroying the user date claim.
5. Filing in a personal name to access the concessional fee when the operating business is a company, creating a transfer obligation later.
6. Joint filing between parties who do not trade jointly, contrary to Section 24.
7. Claiming DPIIT or Udyam status without holding the certificate at filing.
8. Holding-company ownership with no written licence to the operating companies, creating Section 47 exposure.
9. Never updating the Register after conversion, merger, name change, reconstitution or succession.
10. Wrong principal place of business, leading to filing at the wrong Registry office under Rules 3, 4 and 16.

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12. The Decision Framework

Before filling in the applicant field, answer these in order:

Q1. Who actually adopted and first used the mark in the course of trade? That entity is the proprietor. If it still exists and still trades, it should be the applicant.

Q2. If that entity no longer trades, has the mark been transferred to the successor — in writing? If not, execute the transfer now, before filing, and be prepared to exhibit it with the Rule 25 affidavit.

Q3. Is the intended applicant a legal person? An individual, company, LLP, HUF, trust, society or registered body — yes. A trading style — no.

Q4. Does the intended applicant hold DPIIT or Udyam registration? If it does, upload the certificate and claim the concessional fee. If it could obtain it before filing, do so.

Q5. Where is the applicant’s principal place of business in India? This determines the Registry office and the address for service.

Q6. Will the applicant be the entity that actually uses the mark? If not, prepare a written licence with quality-control provisions, and consider a registered user entry under Sections 48–49.

Q7. Will the ownership structure survive the next twenty-four months? Incorporation, investment, conversion, or a founder exit all change the answer. Choose the structure that will still be correct after the change, or plan and budget the transfer.

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13. Conclusion

The applicant name is not administrative data. It is the assertion of proprietorship on which the entire registration rests, and it is the one field on Form TM-A that cannot be quietly fixed.

The law here is not complicated. Section 18(1) requires the applicant to be the proprietor. Rule 15 requires the applicant to be properly identified — every partner named, the country of incorporation stated, the address given. Rule 37 and Section 58 allow errors to be corrected but not proprietors to be swapped. Sections 39 and 45 handle actual transfers, at the cost of a deed, stamp duty and recordal.

What is complicated is the commercial reality that the law meets: businesses start as proprietorships and become companies, partners come and go, founders file in their own names because incorporation has not happened yet, and groups separate ownership from trading. Every one of those is manageable — provided the paperwork follows the reality and the Register is kept current.

The rule to remember is simple. The name on the application must match the name on the invoices, and both must match the entity that will one day have to sue. Where those three diverge, fix the divergence before filing. It is the cheapest hour of legal work available in the entire brand protection process.

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14. Frequently Asked Questions (FAQs)

1. Can I file a trade mark application in my shop’s name, like “M/s Sharma Enterprises”?

A. Not on its own. A trading style is not a legal person unless it is the registered name of a company or LLP. A sole proprietorship has no separate legal existence, so the applicant must be the individual. The correct formulation is “Rajesh Kumar Sharma trading as Sharma Enterprises” — the individual is the applicant and the trading style is recorded alongside.

2. What happens if I file only in the trading style’s name?

A. The Registry may raise an objection requiring clarification of the applicant’s constitution. If it slips through, the registration stands in the name of a non-existent person, which is a rectification target under Section 57, makes assignment difficult because a non-person cannot execute a deed, and creates standing problems when you need to sue.

3. Do I have to name every partner in a partnership application?

A. Yes. Rule 15(2) of the Trade Marks Rules, 2017 requires the full name and nationality of every partner to be given. An application naming only the firm’s trading style is deficient on the face of the Rules. Where a minor has been admitted to the benefits of the partnership, the guardian’s name is also stated.

4. Can an unregistered partnership firm own and enforce a trade mark?

A. Yes. Section 69 of the Indian Partnership Act, 1932 restricts an unregistered firm from suing to enforce contractual rights, but the Supreme Court in Haldiram Bhujiawala v. Anand Kumar Deepak Kumar, (2000) 3 SCC 250, held that a suit for infringement or passing off rests on a statutory or common law right rather than a contractual one, and is therefore not barred. Registering the firm is still advisable for other reasons.

5. Which applicant type gets the cheaper government fee?

A. The concessional rate — currently ₹4,500 per class for e-filing against ₹9,000 for others — applies to individuals, sole proprietors, DPIIT-recognised startups, and Udyam-registered micro or small enterprises. Companies, LLPs and partnerships qualify only if they themselves hold Udyam registration or DPIIT recognition.

6. My company’s founder has Udyam registration personally. Does the company get the concession?

A. No. The status attaches to the applicant entity, not to its promoters or directors. If the company itself does not hold Udyam registration or DPIIT recognition, it pays the higher rate. If the company could obtain the registration, do it before filing.

7. Can I claim the startup or MSME concession after filing?

A. The certificate must be uploaded with Form TM-A. Retrospective claims lead to deficiency notices and fee shortfall demands. Obtain the certificate first, then file.

8. Should I file in my personal name to save on fees and transfer to my company later?

A. It is legal but usually a false economy. The later transfer requires a deed of assignment, stamp duty, a Registry recordal on Form TM-P, and professional fees — typically more than the amount saved. It also creates a chain-of-title entry that every future opponent and every due diligence exercise will examine, and it becomes a condition precedent in funding rounds.

9. My mark was used by my proprietorship since 2016, but I incorporated a company in 2022. Who should be the applicant?

A. Whoever actually owns the mark now. If the mark was transferred to the company, the company applies and you exhibit the deed of assignment or business transfer document with the Rule 25 affidavit, expressly explaining the chain of title. If no transfer has happened, execute one before filing — otherwise the company cannot support a 2016 user date, because the invoices name a different entity.

10. Is a mismatch between the invoices and the applicant really that serious?

A. It is the most common reason Indian user-date claims collapse. Rule 25(2) requires an affidavit with supporting documents where prior use is claimed, and Rule 25(1) requires the use to relate to the goods or services in the application. An unexplained gap between the entity on the earliest invoices and the applicant hands an opponent a ready-made non-proprietorship pleading under Section 18(1).

11. Can I just correct the applicant name after filing?

A. It depends entirely on whether the underlying legal person is the same. Rule 37 permits correction of errors and amendment before registration, and Section 58 permits correction of the register afterwards — but neither permits substituting a different legal person. Changing the proprietor is a transfer, not a correction.

12. What counts as a correctable error?

A. Typographical mistakes, expanding “Pvt. Ltd.” to “Private Limited” to match the incorporation certificate, correcting an entity descriptor where the legal person is unchanged, adding a trading style alongside a correctly named individual, address changes, and a change of a company’s own name — because a company that changes its name remains the same legal person.

13. What if I named the wrong legal person entirely?

A. Then the mark must actually be transferred. For a pending application or unregistered mark, assignment is governed by Section 39; for a registered mark, by Section 45, with the assignee applying to register their title. All routes require a deed of assignment, stamp duty under the applicable state Stamp Act, and recordal on Form TM-P.

14. How much does fixing a wrong applicant name cost?

A. Between deed drafting, stamp duty, Registry fee, professional fees and months of processing time, it routinely exceeds the original filing fee. And the resulting recordal is permanently visible in the chain of title.

15. Can two people jointly own a trade mark?

A. Only in limited circumstances. Section 24 bars registration in the names of two or more persons as joint proprietors unless the mark is used, or proposed to be used, by them jointly in the course of trade. Two people who each run separate businesses cannot co-own a mark merely as a convenience — genuine joint trading is required.

16. Is joint ownership a good idea between co-founders?

A. Usually not, unless the joint trading relationship is genuine and durable. Joint ownership means neither party can license, assign or enforce cleanly without the other, and it is extremely difficult to unwind if the founders separate. A single-owner structure with a written licence to the other is generally cleaner.

17. Should a holding company or the operating company own the brand?

A. Both models work. The operating-company model is simplest and evidentially cleanest — use, invoices and proprietorship all in one name. The holding-company model insulates the brand from operating liabilities and centralises group control, but it carries a Section 47 non-use risk because the proprietor itself never trades.

18. How do I protect a holding company from a non-use attack?

A. Document the licensing properly. Use by a licensee enures to the proprietor’s benefit only where the proprietor controls the quality and character of the goods or services. Put written licence agreements in place with quality-control provisions, keep evidence of actual supervision, and consider recording licensees as registered users under Sections 48 and 49, or as permitted users within the meaning of Section 2(1)(r).

19. My partnership converted into an LLP. Do I need to do anything?

A. Yes. Conversion under the Second Schedule to the Limited Liability Partnership Act, 2008 vests the firm’s property in the LLP by operation of law, so the transfer is statutory — but the Register still needs updating. File Form TM-P with the conversion certificate and the registrar of companies documentation.

20. My proprietorship became a private limited company. Same question.

A. Conversion under Chapter XXI (Section 366) of the Companies Act, 2013 similarly vests the business’s property in the company. If the business was instead transferred by agreement rather than statutory conversion, an express deed of assignment is required. Either way, update the Registry. This is the most commonly neglected step in Indian startups.

21. My company changed its name. Is that an assignment?

A. No. The company remains the same legal person, so this is a correction under Section 58, filed on Form TM-P with the fresh certificate of incorporation consequent upon change of name. No deed and no stamp duty are required.

22. A partner retired from our firm. Does the trade mark record need updating?

A. Yes. Because Rule 15(2) requires every partner to be named, the Register should reflect the current constitution. If the record still lists partners who left years ago, the chain of title becomes contested at exactly the moment it matters — in an opposition or a suit.

23. What happens to a trade mark if a partnership dissolves?

A. If the partnership deed does not expressly deal with IP ownership on dissolution, ownership becomes a dispute between former partners. This is one of the most common sources of Indian trade mark litigation between family members. Address IP ownership expressly in the deed at the outset.

24. What happens to a mark held in an individual’s personal name when they die?

A. It passes by succession and must be recorded with the Registry, supported by probate, a succession certificate, a will, or a family settlement deed as applicable. Marks held in personal names are frequently lost or disputed at this stage because nothing was ever recorded.

25. Can an HUF own a trade mark?

A. Yes, acting through its Karta, with the HUF’s PAN, a declaration identifying the Karta and coparceners, and the Karta’s identity proof. HUF applications are relatively uncommon and can attract examination queries. Use this category only where the HUF is genuinely the trading entity, not merely to access a concessional fee.

26. Can a trust, society or NGO own a trade mark?

A. Yes. The applicant is the trust (acting through its trustees), the society registered under the Societies Registration Act, 1860 or the relevant state Act, or the Section 8 company. File the trust deed or memorandum and rules, the registration certificate, and a resolution of the trustees or governing body authorising the filing and identifying the signatory.

27. What extra requirements apply to a foreign applicant?

A. Rule 15(4) requires the country of incorporation or nature of registration to be stated, and Rule 15(3) requires the home-country address plus an address for service in India. Foreign entities pay the higher fee, do not qualify for Indian MSME or startup concessions, and typically need a notarised or apostilled Form TM-48. Note also that a foreign applicant claiming an Indian user date must show use in India; global sales are not Indian use.

28. Why does my principal place of business matter?

A. Rule 16 requires it to be stated, and read with Rules 3 and 4 it determines which office of the Trade Marks Registry — Delhi, Mumbai, Kolkata, Chennai or Ahmedabad — has jurisdiction. Getting it wrong means filing at the wrong office, with consequent delay and transfer. For joint applicants, the first-named applicant’s principal place of business governs.

29. Who can sign and act on the application?

A. Section 145 identifies three categories: a legal practitioner, a registered trade marks agent, or a person in the sole and regular employment of the applicant. Each is a natural person; a firm as such is not a Section 145 category, which is why Form TM-48 powers of attorney are executed in favour of named individuals.

30. My company name on the application differs slightly from the incorporation certificate. Does it matter?

A. Yes, and it is easily avoided. Copy the name character-for-character from the certificate of incorporation, including whether it reads “Private Limited” or “Pvt. Ltd.” Mismatches invite examination queries, complicate assignment recordals, and get flagged in due diligence.

31. I haven’t incorporated my company yet but want to file now. What should I do?

A. File in the promoter’s individual name — the company does not yet exist and cannot hold property, so this is legitimate and often unavoidable. Then plan the assignment into the company as part of the incorporation workstream, and budget for the deed, stamp duty and recordal.

32. What is the simplest test for whether I have the applicant name right?

A. The name on the application must match the name on the invoices, and both must match the entity that will one day have to sue. Where those three diverge, fix the divergence before filing rather than after. It is the cheapest hour of legal work in the entire brand protection process.