A trademark protects the brand identity that distinguishes your goods or services from those of others, but not every applicant or every mark qualifies for registration. Under the Trade Marks Act, 1999, eligibility turns on two questions: whether the applicant is entitled to claim the mark, and whether the mark itself clears the statutory bars. This article explains, as the position stands in 2026, who can apply, what can and cannot be registered, and the absolute and relative grounds on which the Registry may refuse an application.<\/p>\n
The Act allows any person “claiming to be the proprietor” of a trademark to apply, whether the mark is already in use or is proposed to be used. The term “person” is read widely, so a broad range of applicants qualify:<\/p>\n
An applicant may file on a “proposed to be used” basis even before commercial use begins, which is why founders often secure a mark ahead of launch. Where an agent or attorney files on the applicant’s behalf, an authorisation on Form TM-48 is required.<\/p>\n
The government filing fee depends on the applicant’s status. Individuals, sole proprietors, startups, and micro, small and medium enterprises pay a concessional rate, while companies, LLPs, and other entities pay the standard rate. For 2026 the per-class fees are:<\/p>\n
To claim the concessional rate, a startup must hold a valid DPIIT recognition certificate under the Startup India initiative, and an MSME must submit its Udyam Registration Certificate at the time of filing. Filing fees are non-refundable regardless of the eventual outcome, so eligibility should be confirmed before the application is lodged.<\/p>\n
A registrable trademark must be capable of being represented graphically and of distinguishing the goods or services of one person from those of others. Subject to that test, the following can be protected:<\/p>\n
Distinctiveness is the common thread. Coined and arbitrary marks are the strongest because they have no descriptive meaning in relation to the goods, while suggestive marks that hint at a quality without directly describing it are usually acceptable. Descriptive terms are weak and often refused unless distinctiveness has been acquired through use.<\/p>\n
Absolute grounds concern the mark itself, independent of any third party’s rights. A mark may be refused under Section 9 if it falls into any of the following categories:<\/p>\n
Section 9 provides an important escape route. A mark that is descriptive or otherwise non-distinctive may still be registered if the applicant proves that, before the date of application, it had acquired a distinctive character as a result of use, or had become a well-known mark. Evidence such as sales figures, advertising spend, and media recognition is typically relied upon to establish this acquired distinctiveness.<\/p>\n
Relative grounds concern conflicts with the rights of others. Even a mark that is inherently distinctive can be refused under Section 11 where it clashes with an earlier right:<\/p>\n
Conflicts arising from identical or similar registered marks often surface during examination, whereas objections based on well-known marks or unregistered rights are commonly raised by third parties during the opposition stage. A clearance search before filing is the most effective way to identify these risks early. Relative grounds may be overcome where the proprietor of the earlier mark consents, or where honest concurrent use can be demonstrated.<\/p>\n
Selecting a strong, distinctive mark and confirming the correct applicant category are the two decisions that most influence the outcome. A coined or arbitrary mark reduces the risk of an absolute-grounds objection, while a thorough search of the Registry and the market reduces the risk of a relative-grounds objection or a later opposition. Because filing fees are non-refundable and the examination process can take time, getting these fundamentals right at the outset saves both cost and delay. Sound professional advice on classification, applicant status, and search results is a worthwhile investment before any trademark registration<\/a> application is submitted.<\/p>\n Yes. An individual can apply as the proprietor of a mark whether or not they operate a formal business, and can file on a proposed-to-be-used basis before any commercial use begins.<\/p>\n Absolute grounds under Section 9 concern defects in the mark itself, such as lack of distinctiveness or a prohibited element. Relative grounds under Section 11 concern conflicts with earlier marks or rights held by others.<\/p>\n It can, if the applicant proves that the mark had acquired distinctive character through use before the application date, or had become a well-known mark. This requires supporting evidence of use and recognition.<\/p>\n Yes. Individuals, sole proprietors, DPIIT-recognised startups, and Udyam-registered MSMEs pay the concessional per-class fee, provided the relevant recognition certificate is submitted at the time of filing.<\/p>\n Yes. Foreign applicants may file directly or through the Madrid Protocol, provided they furnish an address for service in India for correspondence with the Registry.<\/p>\n TAXAJ regularly advises founders, businesses, and foreign applicants on trademark selection, clearance searches, classification, and the full registration process, along with wider intellectual property rights protection. If you are planning to secure your brand, our team can manage your trademark registration from search to certificate and help you respond confidently to any objection or opposition.<\/p>\n","protected":false},"excerpt":{"rendered":" A trademark protects the brand identity that distinguishes your goods or services from those of others, but not every applicant or every mark qualifies for registration. Under the Trade Marks Act, 1999, eligibility turns on two questions: whether the applicant is entitled to claim the mark, and whether the mark itself clears the statutory bars….<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_kad_post_transparent":"","_kad_post_title":"","_kad_post_layout":"","_kad_post_sidebar_id":"","_kad_post_content_style":"","_kad_post_vertical_padding":"","_kad_post_feature":"","_kad_post_feature_position":"","_kad_post_header":false,"_kad_post_footer":false,"_kad_post_classname":"","footnotes":""},"categories":[8],"tags":[],"class_list":["post-471","post","type-post","status-publish","format-standard","hentry","category-legal-ipr"],"_links":{"self":[{"href":"https:\/\/www.taxaj.com/learn\/wp-json\/wp\/v2\/posts\/471","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.taxaj.com/learn\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.taxaj.com/learn\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.taxaj.com/learn\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.taxaj.com/learn\/wp-json\/wp\/v2\/comments?post=471"}],"version-history":[{"count":0,"href":"https:\/\/www.taxaj.com/learn\/wp-json\/wp\/v2\/posts\/471\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.taxaj.com/learn\/wp-json\/wp\/v2\/media?parent=471"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.taxaj.com/learn\/wp-json\/wp\/v2\/categories?post=471"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.taxaj.com/learn\/wp-json\/wp\/v2\/tags?post=471"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}Frequently asked questions<\/h2>\n
Can an individual apply for a trademark without a registered business?<\/h3>\n
What is the difference between absolute and relative grounds for refusal?<\/h3>\n
Can a descriptive mark ever be registered?<\/h3>\n
Do startups and MSMEs pay a lower filing fee?<\/h3>\n
Can a foreign company register a trademark in India?<\/h3>\n