What are the Registration and ROC compliance after establishment of branch office in india. Parent company is NPO organisation outside India
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Would having a Trademark in English Prohibit the registration of a similar Trademark in other Languages?
A Trademark can be removed from Register for non-use with how many years of Registration?
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As per name rule or guideline what is called common and generic ?
1[8. Names which resemble too nearly with name of existing company.-
(1) A name applied for shall be deemed to resemble too nearly with the name of an existing company, if, and only if, after comparing the name applied for with the name of an existing company by disregarding the matters set out in sub-rule (2), the names are same.
(2) The following matters are to be disregarded while comparing the names under sub-rule (1):-
(a) the words like Private, Pvt, Pvt., (P), OPC Pvt. Ltd., IFSC Limited, IFSC Pvt. Limited, Producer Limited, Limited, Unlimited, Ltd, Ltd., LLP, Limited Liability Partnership, company, and company, & co, & co., co., co, corporation, corp, corpn, corp or group;
(b) the plural or singular form of words in one or both names;
A. Illustrations
(i) Green Technology Ltd. is same as Greens Technology Ltd. and Greens Technologies Ltd.
(ii) Pratap Technology Ltd. is same as Prataps Technology Ltd. and Prataps Technologies Ltd.
(iii) SM Computers Ltd. is not same as SMS Computers Ltd.
(c) type and case of letters, spacing between letters, punctuation marks and special characters used in one or both names;
B. Illustrations
(i) ABC Ltd. is same as A.B.C. Ltd. and A B C Ltd.
(ii) TeamWork Ltd. is same as Team@Work Ltd. and Team-Work Ltd.
(d) use of different tenses in one or both names
C. Illustrations
(i) Ascend Solutions Ltd. is same as Ascended Solutions Ltd. and Ascending Solutions Ltd.
(ii) Speak English Solutions Limited is same as Spoken English Solutions Limited.
(e) use of different phonetic spellings including use of misspelled words of an expression;
D. Illustrations
(i) Chemtech Ltd. is same as Chemtec Ltd., Chemtek Ltd., Cemtech Ltd., Cemtek Ltd., Kemtech Ltd., and Kemtek Ltd.
(ii) Bee Kay Ltd is same as BK Ltd, Be Kay Ltd., B Kay Ltd., Bee K Ltd., B.K. Ltd. and Beee Kay Ltd.
(f) use of host name such as ‘www’ or a domain extension such as ‘net’, ‘org’, ‘dot’ or ‘com’ in one or both names;
E. Illustrations
(i) Ultra Solutions Ltd. is same as Ultrasolutions.com Ltd.
(ii) Supreme Ultra Solutions Ltd. is not the same as Ultrasolutions.com Ltd.
(g) the order of words in the names
F. Illustrations
(i) Ravi Builders and Contractors Ltd. is same as Ravi Contractors and Builders Ltd.
(ii) Ravi Builders and Contractors Limited is not the same as Ravi Shankar Builders and Contractors Limited.
(h) use of the definite or indefinite article in one or both names
G. Illustrations
(i) Congenial Tours Ltd. is same as A Congenial Tours Ltd. and The Congenial Tours Ltd.
(ii) Isha Industries Limited is not the same as Anisha Industries Limited.
(i) a slight variation in the spelling of the two names including a grammatical variation thereof;
H. Illustrations
(i) Color Technologies Ltd. is same as Colour Technologies Ltd.
(ii) Disc Solutions Ltd. is same as Disk Solutions Ltd. but it is not same as Disco Solutions Ltd.
(j) complete translation or transliteration, and not part thereof, of an existing name, in Hindi or in English;
I. Illustrations
(i) National Electricity Corporation Ltd. is same as Rashtriya Vidyut Nigam Ltd.
(ii) Hike Construction Ltd. is not the same as Hike Nirman Ltd.
(k) addition of the name of a place to an existing name, which does not contain the name of any place;
J. Illustrations
(i) If Salvage Technologies Ltd. is an existing name, it is same as Salvage Technologies Delhi Ltd and Salvage Delhi Technologies Ltd.
(ii) Retro Pharmaceuticals Ranchi Ltd. is not the same as Retro Pharmaceuticals Chennai Ltd.
(l) addition, deletion, or modification of numerals or expressions denoting numerals in an existing name, unless the numeral represents any brand;
K. Illustrations
(i) Thunder Services Ltd is same as Thunder11 Services Ltd and OneThunder Services Ltd
(ii) Style Garments11 Ltd. is same as Style Garments Ltd and Style12 Garments Ltd.
(iii) One 11 Power Equipment Ltd is not the same as One Power Equipment Ltd, if One 11 represents a brand:
Provided that clauses (f) to (h) and clauses (k) and (I) shall not be disregarded while comparing the names, if a no objection by way of a Board resolution has been provided by an existing company.
8A. Undesirable names.-
(1) The name shall be considered undesirable, if-
(a) it is prohibited under the provisions of section 3 of the Emblems and Names (Prevention and Improper Use) Act, 1950 (12 of 1950), unless a previous permission has been obtained under that Act;
(b) save as provided in section 35 of the Trade Marks Act, 1999 (47 of 1999), the name includes a trade mark registered under the Trade Marks Act, 1999 and the rules framed thereunder in the same class of goods or services in which the activity of the company is being carried out or is proposed to be carried out, unless the consent of the owner 2[or applicant for registration], of the trade mark, as the case may be, has been obtained and produced by the promoters;
(c) it includes any word or words which are offensive to any section of the people;
(d) the proposed name is identical with or too nearly resembles the name of a limited liability partnership:
Provided that the provisions of rule 8 shall apply mutatis mutandis while determining whether a proposed name is too nearly resembling the name of a limited liability partnership;
(e) the proposed name is identical with or too nearly resembles with a name which is for the time being reserved in accordance with rule 9:
Provided that the provisions of rule 8 shall apply mutatis mutandis while determining whether a proposed name is too nearly resembling with a reserved name;
(f) the company’s main business is financing, leasing, chit fund, investments, securities or combination thereof, but the proposed name is not indicative of such related financial activities, viz., Chit Fund or Investment or Loan, etc.;
(g) the company’s name is indicative of activities financing, leasing, chit fund, investments, securities or combination thereof, but the company’s main business is not related to such activities;
(h) it resembles closely the popular or abbreviated description of an existing company or limited liability partnership;
(i) the proposed name is identical with or too nearly resembles the name of a company or limited liability partnership incorporated outside India and reserved by such company or limited liability partnership with the Registrar:
Provided that if a foreign company is incorporating its subsidiary company in India, then the original name of the holding company as it is may be allowed with the addition of word India or name of any Indian State or city, if otherwise available:
Provided further that provisions of rule 8 shall apply mutatis mutandis while determining whether a proposed name is too nearly resembling the name of a company or limited liability partnership incorporated outside India;
(j) any part of the proposed name includes the words indicative of a separate type of business constitution or legal person or any connotation thereof e.g. co-operative, sehkari, trust, LLP, partnership, society, proprietor, HUF, firm, Inc., PLC, GmbH, SA, PTE, Sdn, AG, etc.;
Explanation.-For the purposes of this clause, it is hereby clarified that the name including phrase ‘Electoral Trust’ may be allowed for registration of companies to be formed under section 8 of the Act, in accordance with the Electoral Trusts Scheme, 2013 notified by the Central Board of Direct Taxes (CBDT):
Provided that name application is accompanied with an affidavit to the effect that the name to be obtained shall be only for the purpose of registration of companies under the said Electoral Trust Scheme as notified by the Central Board of Direct Taxes;
(k) the proposed name contains the words ‘British India’;
(l) the proposed name implies association or connection with an embassy or consulate of a foreign government;
(m) the proposed name includes or implies association or connection with or patronage of a national hero or any person held in high esteem or important personages who occupied or are occupying important positions in the Government;
(n) the proposed name is identical to the name of a company dissolved as a result of liquidation proceeding and a period of two years has not elapsed from the date of such dissolution:
Provided that if the proposed name is identical with the name of a company which is struck off in pursuance of action under section 248 of the Act or under section 560 of the Companies Act, 1956 (1 of 1956) then the same shall not be allowed before the expiry of twenty years from the date of publication in the Official Gazette being so struck off;
(o) it is identical with the name of a limited liability partnership in liquidation or the name of a limited liability partnership which is struck off up to a period of five years;
(p) the proposed name include words such as ‘Insurance’, ‘Bank’, ‘Stock Exchange’, ‘Venture Capital’, ‘Asset Management’, ‘Nidhi’, ‘Mutual Fund’, etc., unless a declaration is submitted by the applicant that the requirements mandated by the respective regulator, such as IRDA, RBI, SEBI, MCA, etc. have been complied with by the applicant;
(q) the proposed name includes the word “State”, in case the company is not a Government company; ]
(r) the proposed name is containing only the name of a continent, country, State, city such as Asia limited, Germany Limited, Haryana Limited or Mysore Limited;
(s) Use of descriptive names, where the name merely consists of commonly used words to describe an activity.
Explanation.—For the purposes of this clause,-
(A) the term “commonly used words” refers to use of generic expressions which may be used by any other company to describe its trade;
(B) while determining whether a name is descriptive or not, the objects of the proposed company or the order of words appearing in a name shall not be relevant;
(C) the name shall not be deemed to be descriptive where “commonly used words” are used in addition to other words in the name;
A. Illustrations
(i) The names Silk Manufacturers Private Limited and Manufacturers Silk Ltd. are descriptive names as they merely describe an activity which may also be carried out by any other company and the order of the words is not relevant while determining a descriptive name.
(ii) The names Computer World Ltd., Food Star Ltd., Tour Hub Ltd or House of Chocolate Ltd are not descriptive as the names do not merely consist of commonly used words.
(iii) The names Technical Vista Ltd or Vista Technical are not descriptive as the names do not merely consist of commonly used words and the order of the words is not relevant while determining whether a name is descriptive.
(iv) The name Drinking Water Plant Ltd. is a descriptive name, even if the object of the company is not related to making drinking water plant as it consists of commonly used words and objects of the proposed company is not relevant while determining whether a name is descriptive.
(v) The name Silk Wise Manufacturers Private Limited is not descriptive as it contains words other than commonly used words.
(t) the proposed name includes name of any foreign country or any city in a foreign country, the same shall be allowed if the applicant produces any proof of significance of business relations with such foreign country like memorandum of understanding with a company of such country:
Provided that the name combining the name of a foreign country with the use of India like India Japan or Japan India shall be allowed if, there is a government to government participation or patronage and no company shall be incorporated using the name of an enemy country.
Explanation.- For the purposes of this clause, ‘enemy country’ means so declared by the Government of India from time to time.
(u) the proposed name of a section 8 company under the Act does not include the words Foundation, Forum, Association, Federation, Chambers, Confederation, Council, Electoral Trust and the like, etc.
(v) the proposed name of a Nidhi company under the Act does not have the last words “Nidhi Limited” as a part of its name.
(w) the proposed name has been released from the register of companies upon change of name of a company and three years have not elapsed since the date of change unless a specific direction has been received from the competent authority in the course of compromise, arrangement or amalgamation.
(2) The applicant shall declare in affirmative or negative (to affirm or deny) whether he is using or has been using in the last five years, the name applied for incorporation of company or LLP in any other business constitution like Sole proprietor or Partnership or any other incorporated or unincorporated entity and if, yes details thereof and No Objection Certificate from other partners and associates for use of such name by the proposed Company or LLP, as the case may be, and also a declaration as to whether such other business shall be taken over by the proposed company or LLP or not.
8B. Word or expression which can be used only after obtaining previous approval of Central Government.In terms clause (b) of sub-section (3) of section 4, the following words and combinations thereof shall not be used in the name of a company in English or any of the languages depicting the same meaning unless the previous approval of the Central Government has been obtained for the use of any such word or expression:-
(a) Board;
(b) Commission;
(c) Authority;
(d) Undertaking;
(e) National;
(f) Union;
(g) Central;
(h) Federal;
(i) Republic;
(j) President;
(k) Rashtrapati;
(l) Small Scale Industries;
(m) Khadi and Village Industries Corporation;
(n) Financial Corporation and the like;
(o) Municipal;
(p) Panchayat;
(q) Development Authority;
(r) Prime Minister or Chief Minister;
(s) Minister;
(t) Nation;
(u) Forest corporation;
(v) Development Scheme;
(w) Statute or Statutory;
(x) Court or Judiciary;
(y) Governor;
(z) the use of word Scheme with the name of Government (s), State, India, Bharat or any Government authority or in any manner resembling with the schemes launched by Central, State or local Governments and authorities; and
(za) Bureau.]
Amendment
1.Substituted by the Companies (Incorporation) Fifth Amendment Rules, 2019 dated 10th May 2019. Original Content
2.Omitted by Companies (Incorporation) Eighth Amendment Rules, 2019. Dated 16th October, 2019.
Original Omitted Content 8 Undesirable Names
(1) In determining whether a proposed name is identical with another, the differences on account of the following shall be disregarded-
(a) the words like Private, Pvt, Pvt., (P), Limited, Ltd, Ltd., LLP, Limited Liability Partnership;
(b) words appearing at the end of the names – company, and company, co., co, corporation, corp, corpn, corp.;
(c) plural version of any of the words appearing in the name;
(d) type and case of letters, spacing between letters and punctuation marks;
(e) joining words together or separating the words does not make a name distinguishable from a name that uses the similar, separated or joined words;
(f) use of a different tense or number of the same word does not distinguish one name from another;
(g) using different phonetic spellings or spelling variations shall not be considered as distinguishing one name from another. Illustration (For example, P.Q. Industries limited is existing then P and Q Industries or Pee Que Industries or P n Q Industries or P & Q Industries shall not be allowed and similarly if a name contains numeric character like 3, resemblance shall be checked with ‘Three’ also;)
(h) misspelled words, whether intentionally misspelled or not, do not conflict with the similar, properly spelled words;
(i) the addition of an internet related designation, such as .com, .net, .edu, .gov, .org, .in does not make a name distinguishable from another, even where (.) is written as ‘dot’;
(j) the addition of words like New, Modern, Nav, Shri, Sri, Shree, Sree, Om, Jai, Sai, The, etc. does not make a name distinguishable from an existing name and similarly, if it is different from the name of the existing company only to the extent of adding the name of the place, the same shall not be allowed; such names may be allowed only if no objection from the existing company by way of Board resolution is submitted;
(k) different combination of the same words does not make a name distinguishable from an existing name, e.g., if there is a company in existence by the name of "Builders and Contractors Limited", the name "Contractors and Builders Limited" shall not be allowed unless it is change of name of existing company;
(l) if the proposed name is the Hindi or English translation or transliteration of the name of an existing company or limited liability partnership in English or Hindi, as the case may be.
(2) (a) The name shall be considered undesirable, if-
(i) it attracts the provisions of section 3 of the Emblems and Names (Prevention and Improper Use) Act, 1950 (12 of 1950);
7[(ii) it includes the name of a trade mark registered or a trade mark which is subject of an application for registration under the Trade Marks Act, 1999 and the rules framed thereunder unless the consent of the owner or applicant for registration, of the trade mark, as the case may be, has been obtained and produced by the promoters.]
(iii) it includes any word or words which are offensive to any section of the people;
(b) The name shall also be considered undesirable, if-
(i) the proposed name is identical with or too nearly resembles the name of a limited liability partnership,
(ii) 2[Omitted]
(iii) the company’s main business is financing, leasing, chit fund, investments, securities or combination thereof, such name shall not be allowed unless the name is indicative of such related financial activities, viz., Chit Fund or Investment or Loan, etc.;
(iv) it resembles closely the popular or abbreviated description of an existing company or limited liability partnership;
(v) the proposed name is identical with or too nearly resembles the name of a company or limited liability partnership incorporated outside India and reserved by such company or limited liability partnership with the Registrar:
Provided that if a foreign company is incorporating its subsidiary company in India, then the original name of the holding company as it is may be allowed with the addition of word India or name of any Indian state or city, if otherwise available;
(vi) any part of the proposed name includes the words indicative of a separate type of business constitution or legal person or any connotation thereof e.g. co-operative, sehkari, trust, LLP, partnership, society, proprietor, HUF, firm, Inc., PLC, GmbH, SA, PTE, Sdn, AG etc.;
Explanation.- For the purposes of this sub-clause, it is hereby clarified that the name including phrase ‘Electoral Trust’ may be allowed for Registration of companies to be formed under section 8 of the Act, in accordance with the Electoral Trusts Scheme, 2013 notified by the Central Board of Direct Taxes (CBDT):
Provided that name application is accompanied with an affidavit to the effect that the name to be obtained shall be only for the purpose of registration of companies under Electoral Trust Scheme as notified by the Central Board of Direct Taxes;
(vii) the proposed name contains the words ‘British India’;
(viii) the proposed name implies association or connection with embassy or consulate or a foreign government;
(ix) the proposed name includes or implies association or connection with or patronage of a national hero or any person held in high esteem or important personages who occupied or are occupying important positions in Government;
(x) 3[Omitted]
(xi) the proposed name is identical to the name of a company dissolved as a result of liquidation proceeding and a period of two years have not elapsed from the date of such dissolution:
Provided that if the proposed name is identical with the name of a company which is struck off in pursuance of action 1["or under section 560 of the Companies Act, 1956(1 of 1956)"] then the same shall not be allowed before the expiry of twenty years from the publication in the Official Gazette being so struck off;
(xii) it is identical with or too nearly resembles the name of a limited liability partnership in liquidation or the name of a limited liability partnership which is struck off up to a period of five years;
(xiii) the proposed name include words such as ‘Insurance’, ‘Bank’, ‘Stock Exchange’, ‘Venture Capital’, ‘Asset Management’, ‘Nidhi’, ‘Mutual fund’ etc., unless a declaration is submitted by the applicant that the requirements mandated by the respective regulator, such as IRDA, RBI, SEBI, MCA etc. have been complied with by the applicant;
(xiv) the proposed name includes the word "State", the same shall be allowed only in case the company is a government company;
(xv) the proposed name is containing only the name of a continent, country, state, city such as Asia limited, Germany Limited, Haryana Limited, Mysore Limited;
(xvi) the name is only a general one, like Cotton Textile Mills Ltd. or Silk Manufacturing Ltd., and not Lakshmi Silk Manufacturing Co. Ltd;
(xvii) 4[Omitted]
(xviii) the proposed name includes name of any foreign country or any city in a foreign country, the same shall be allowed if the applicant produces any proof of significance of business relations with such foreign country like Memorandum Of Understanding with a company of such country:
Provided that the name combining the name of a foreign country with the use of India like India Japan or Japan India shall be allowed if, there is a government to government participation or patronage and no company shall be incorporated using the name of an enemy country. Explanation.- For the purposes of this clause, enemy country means so declared by the Central Government from time to time.
(3) 5[Omitted]
(4) 6[Omitted]
(5) The applicant shall declare in affirmative or negative ( to affirm or deny ) whether they are using or have been using in the last five years , the name applied for incorporation of company or LLP in any other business constitution like Sole proprietor or Partnership or any other incorporated or unincorporated entity and if, yes details thereof and No Objection Certificate from other partners and associates for use of such name by the proposed Company or LLP, as the case may be, and also a declaration as to whether such other business shall be taken over by the proposed company or LLP or not .
(6) The following words and combinations thereof shall not be used in the name of a company in English or any of the languages depicting the same meaning unless the previous approval of the Central Government has been obtained for the use of any such word or expression-
(a) Board;
(b) Commission;
(c) Authority;
(d) Undertaking;
(e) National;
(f) Union;
(g) Central;
(h) Federal;
(i) Republic;
(j) President;
(k) Rashtrapati;
(l) Small Scale Industries;
(m) Khadi and Village Industries Corporation;
(n) Financial 8[Omitted] Corporation and the like;
(o) Municipal;
(p) Panchayat;
(q) Development Authority;
(r) Prime Minister or Chief Minister;
(s) Minister;
(t) Nation;
(u) Forest corporation;
(v) Development Scheme;
(w) Statute or Statutory;
(x) Court or Judiciary;
(y) Governor;
(z) the use of word Scheme with the name of Government (s) , State , India, Bharat or any government authority or in any manner resembling with the schemes launched by Central, state or local Governments and authorities; and
(za) Bureau
(7) For the Companies under section 8 of the Act, the name shall include the words foundation, Forum, Association, Federation, Chambers, Confederation, council, Electoral trust and the like etc. Every company incorporated as a "Nidhi" shall have the last word ‘Nidhi Limited’ as part of its name.
(8) The names released on change of name by any company shall remain in data base and shall not be allowed to be taken by any other company including the group company of the company who has changed the name for a period of three years from the date of change subject to specific direction from the competent authority in the course of compromise, arrangement and amalgamation.
Amendment
1. Inserted by Notification Companies (Incorporation) Amendment Rules, 2015 Dated 1st May, 2015.
2, 3, 4, 5 & 6. Omitted by Notification Companies (Incorporation) Amendment Rules, 2016 Dated 22nd January, 2016.
2. In sub-rule (2), sub-clause (ii) of clause (b),
Original Omitted Content - it is not in consonance with the principal objects of the company as set out in the memorandum of association;
Provided that every name need not be necessarily indicative of the objects of the company, but when there is some indication of objects in the name, then it shall be in conformity with the objects mentioned in the memorandum;
3. In sub-rule (2),sub-clause (x) of clause (b),
Original Omitted Content - the proposed name is vague or an abbreviated name such as ‘ABC limited’ or ‘23K limited’ or ‘DJMO’ Ltd: abbreviated name based on the name of the promoters will not be allowed. For example:- BMCD Limited representing first alphabet of the name of the promoter like Bharat, Mahesh, Chandan and David:
Provided that existing company may use its abbreviated name as part of the name for formation of a new company as subsidiary or joint venture or associate company but such joint venture or associated company shall not have an abbreviated name only e.g. Delhi Paper Mills Limited can get a joint venture or associated company as DPM Papers Limited and not as DPM Limited:
Provided further that the companies well known in their respective field by abbreviated names are allowed to change their names to abbreviation of their existing name after following the requirements of the Act;
4. In sub-rule (2),sub-clause (xvii) of clause (b),
Original Omitted Content - it is intended or likely to produce a misleading impression regarding the scope or scale of its activities which would be beyond the resources at its disposal:
5. Sub-rule (3),
Original Omitted Content - If any company has changed its activities which are not reflected in its name, it shall change its name in line with its activities within a period of six months from the change of activities after complying with all the provisions as applicable to change of name.
6. Sub-rule (4),
Original Omitted Content - In case the key word used in the name proposed is the name of a person other than the name(s) of the promoters or their close blood relatives, No objection from such other person(s) shall be attached with the application for name. In case the name includes the name of relatives, the proof of relation shall be attached and it shall be mandatory to furnish the significance and proof thereof for use of coined words made out of the name of the promoters or their relatives.
7. Substituted by Notification Companies (Incorporation) Third Amendment Rules, 2016 Dated 27th July,2016.
In sub-rule (2) for clause (ii),
"(ii) it includes the name of a registered trade mark or a trade mark which is subject of an application for registration, unless the consent of the owner or applicant for registration, of the trade mark, as the case may be, has been obtained and produced by the promoters;"
the following shall be substituted namely:-
"(ii) it includes the name of a trade mark registered or a trade mark which is subject of an application for registration under the Trade Marks Act, 1999 and the rules framed thereunder unless the consent of the owner or applicant for registration, of the trade mark, as the case may be, has been obtained and produced by the promoters."
8. Omitted by Notification Dated 27th July, 2016
In sub-rule (6), in clause(n), the comma between the words 'financial' and 'corporation' shall be omitted.
Please share which country required to take approval and how ?
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