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INFRINGEMENT OF COMPANY NAME

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CHECKLIST FOR INFRINGEMENT OF COMPANY NAME:

APPLICABLE PROVISIONS:

  1. COMPANIES ACT 2013 :
  • Section 16, AND
  • Section 7(7)

2. Trademark Act, 1999.

OPTION 1APPLICATION TO THE CENTRAL GOVERNMENT

  1. Application to the Regional Director.
  2. NO TIME LIMIT TO MAKE APPLICATION TO REGIONAL DIRECTOR.
  3. If in the opinion of the central government the name of company is identical with or too nearly resembles with the existing company.
  4. Central government may direct to change its name or new name within a period of three months of such direction.

 

OPTION 2: APPLICATION BY REGISTERED PROPRIETOR OF THE TRADEMARK

  1. Application to the central government.
  2. TIME LIMIT: 3 years of Incorporation or change of name of the company.
  3. If in the opinion of the central government the name of company is identical with or too nearly resembles with the existing company.
  4. Central government may direct to change its name or new name within a period of six months of such direction.

OPTION 3: APPLICATION TO NCLT AS PER SECTION 7(7):

Where a company got incorporated by furnishing any false or incorrect information or representation or by suppressing any material fact or information, in any document or declaration or by any fraudulent action then, the Tribunal may, on application(NCLT-1.) made to it under sub-section (7) of section 7, on being satisfied that the situation so warrants:

  1. Pass such orders, as it may think, for regulation of the management of the Company including changes, if any, in its memorandum and articles, in public interest or in the interest of the company and its members and creditors; or
  2. Direct that liability of the members shall be unlimited; or
  3. Direct removal of the name of the company from the register of companies; or
  4. Pass an order for the winding up of the company; or
  5. Pass such orders as it may deem fit.

Particulars to be furnished in form NCLT-1:

  1. Details of original Application: Particulars of applicant,
  2. The applicant is to declare that the subject matter of the petition is within the jurisdiction of the bench,
  3. The applicant is to declare that the application is within the limitation laid down in the Companies Act, 2013,
  4. Facts of the case,
  5. Relief’s sought,
  6. Particulars of the details of bank draft evidencing payment of fees for the application.
  7. Name of the company and other details including date of incorporation, name, address of the subscribers, promoters and first directors,
  8. Details of false or incorrect information or representation or material facts or information suppressed,
  9. Details of such documents in or declaration filed or made for incorporating such company,
  10. Involvement of promoters, subscribers, and first directors in committing fraud during the course of incorporation.

DOCUMENTS THAT ARE TO BE ENCLOSED WITH THE APPLICATION:

  1. Copy of MoA and AoA
  2. Documents in proof of false or incorrect information or fraudulent action,
  3. Affidavit verifying the application,
  4. Bank draft evidencing payment of application fees,
  5. Memorandum of appearance with the copy of the board resolution or executed vakalatnama, as the case may be.

THE TRIBUNAL, BEFORE MAKING ANY ORDER ON THE APPLICATION SHALL GIVE A REASONABLE OPPORTUNITY OF BEING HEARD IN THE MATTER.

 

EXAMPLE:

ABC LABORATORIES LIMITED  VS. ABC PHARMACEUTICALS LIMITED:

GROUNDS ON WHICH WE CAN MAKE APPLICATION TO THE REGIONAL DIRECTOR UNDER OPTION 1:

  1. First names of both the companies are same,
  2. State of both the companies are same,
  3. Object and industry of both the companies are same.
  4. Since the industry of both the companies are same it may lead to confusion to the consumers and it affect the existing company business.
  5. Classes of both the companies are same i.e, PUBLIC COMPANY.

GROUNDS ON WHICH WE CAN MAKE APPLICATION TO THE REGIONAL DIRECTOR UNDER OPTION 2:

UNDER SECTION 11(1):

  • Its identity with an earlier trade mark and similarity of goods or services covered by the trade mark; or
  • Its similarity to an earlier trade mark and the identity or similarity of the goods or services covered by the trade mark, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark.