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Trademark Live

Section 46 of the Trade Marks Act, 1999: Proposed Use by a Company to Be Formed

No application shall be refused on the ground only that the applicant does not use or propose to use the mark, if the Registrar is satisfied that (a) a company is about to be...

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Published
October 1, 2026
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Last updated: October 2026Verified against: Government sources

Section 46 protects an applicant who does not use, and does not propose to use, the mark personally. If a company is about to be formed and the applicant means to assign the mark to it, or if the proprietor means a registered user to use the mark after registration, the application cannot be refused or held back on the sole ground of non-use by the applicant. The section also sets guard-rails, including a time limit for the company to be registered as proprietor.

Why the section exists

Section 18 lets a person apply to register a mark used or proposed to be used. Section 46 deals with the applicant who will not be the user. Founders often want to lock down a brand name before incorporation, and a holding entity often wants to register a mark that a licensee will use. Without section 46, non-use by the applicant could be a reason for refusal; with it, the Registrar must be satisfied of one of two stated intentions. See Section 18: application for registration.

Sub-section (1): the two cases

ClauseWhat the Registrar must be satisfied about
(a)A company is about to be formed and registered under the Companies Act, 1956, and the applicant intends to assign the trade mark to that company with a view to the company using it for those goods or services
(b)The proprietor intends the mark to be used by a person as a registered user after the registration

The word "only" matters. The application cannot be refused or permission withheld on the ground only that it appears the applicant does not use or propose to use the mark. Other grounds, such as those in sections 9 and 11, remain open to the Registrar. The section names the Companies Act, 1956, and the Trade Marks Act has not been amended to refer to the Companies Act, 2013 that replaced it; in practice a company formed and registered under the current Companies Act is what the clause is aimed at.

If you plan to start a business through a new company, our trademark registration service can prepare an application that states the intention clearly, so the Registrar can be satisfied under this section.

Sub-section (2): the link to non-use removal

Section 47 allows removal of a mark for non-use. Sub-section (2) of section 46 adjusts that: in relation to a mark registered under this section, the reference in section 47(1)(a) to the applicant's intention that the mark should be used by him is read as a reference to the intention that it should be used by the company or registered user concerned. So the non-use test follows the person who was meant to use the mark. See Section 47: removal for non-use.

Sub-section (3): security for costs

In a case to which sub-section (1) applies, the tribunal may require the applicant to give security for the costs of any proceedings relating to any opposition or appeal. If the applicant does not give the security as required, the tribunal may treat the application as abandoned.

Before the Tribunals Reforms Act, 2021 this read "tribunal". After the 2021 amendment it reads "the Registrar or the High Court, as the case may be". The practical result is that either the Registrar (during opposition) or the High Court (in an appeal) may call for security. The Act does not give an amount; that is left to the authority concerned.

Sub-section (4): the company must be registered in time

This is the sub-section that catches the unwary. Where the mark has been registered in the name of an applicant relying on an intention to assign it to a company, the company must be registered as the proprietor of the mark for those goods or services:

  • within the period that may be prescribed, or
  • within a further period, not exceeding six months, which the Registrar may allow on an application made in the prescribed manner.

If this does not happen, "the registration shall cease to have effect in respect thereof at the expiration of that period and the Registrar shall amend the register accordingly".

The Trade Marks Rules, 2017 as notified fix the period in rule 85. It is six months from the date of advertisement in the Journal of the registration of the trade mark, or such further period not exceeding six months as the Registrar may allow on an application in Form TM-P. The title is registered on an application under rule 75, which is the route described in Section 45. Check the current Rules for the period and form, as they can be amended.

Example. Priya and Arjun are about to incorporate "Neelkanth Organics Pvt Ltd". Before incorporation, Priya applies in her own name for "Neelkanth", stating that the mark will be assigned to the company. The mark is registered and advertised in the Journal. If the company is incorporated but no application to register it as proprietor is made within the period, the registration ceases to have effect for those goods. If incorporation is delayed, Priya can apply for the permitted extension, which cannot exceed six months.

Clause (b): the registered user case

Clause (b) deals with the proprietor who intends that a registered user will use the mark after registration. The sub-section does not give a time limit in the way sub-section (4) does for the company case. Registered users are dealt with in sections 48 to 54; see Section 48. Our guide to trademark licensing and registered user agreements explains the commercial side.

Practical points

  1. Say which clause you rely on in the application and keep proof of the intention, such as the incorporation plan or the draft licence.
  2. Diary the period under sub-section (4) from the date of advertisement of registration.
  3. Register the company as proprietor promptly, by an application for title under section 45.
  4. Be ready for security for costs if the application is opposed.
  5. Do not rely on section 46 for other grounds. It only answers the objection of non-use by the applicant.

Need help registering a mark before incorporation?

If you are planning a new company or a licensing structure, getting the application and the assignment timeline right avoids losing the registration later. Our trademark registration team can plan the filing, track the sub-section (4) period and complete the title registration.

Key takeaways

  • Section 46 prevents refusal solely because the applicant does not use or propose to use the mark, where a company is about to be formed or a registered user will use it.
  • The Registrar must be satisfied of the stated intention.
  • The tribunal, now the Registrar or the High Court as the case may be, may require security for costs of opposition or appeal.
  • Under sub-section (2), the section 47 non-use test looks to the company or registered user.
  • Under sub-section (4), if the company is not registered as proprietor in time, the registration ceases to have effect for those goods or services.
  • The extension the Registrar may allow cannot exceed six months.

Read next

Disclaimer: Based on the Trade Marks Act, 1999 as amended by the Tribunals Reforms Act, 2021 and the Jan Vishwas (Amendment of Provisions) Act, 2023, as consulted on 1 October 2026. Forms, fees and procedure are set by the Trade Marks Rules, 2017 as amended from time to time. This article is general information, not legal advice; check the official text before acting.

Quick recapKey facts & short answers

Key Facts About Section 46

  • Applies in: All states across India, under the relevant central law.
  • Mode: Mostly online via the official government portal.
  • Typical timeline: Ranges from a few days to a few weeks depending on the case.
  • Non-compliance: May attract penalties, interest or late fees.
  • Expert help: TaxClue completes the entire process end to end for you.

Can I register a mark for a company that does not yet exist?

Section 46(1)(a) lets the application proceed if the Registrar is satisfied that a company is about to be formed and registered and that you intend to assign the mark to it.

Can the Registrar refuse on other grounds?

Yes. Section 46 bars refusal "on the ground only" of non-use or lack of proposed use by the applicant. Other grounds remain.

Paperwork done properly once does not have to be done again under pressure.

— TaxClue Compliance Desk

Section 46: a key compliance topic in Indian tax and corporate law that businesses and individuals must understand to remain compliant.

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Vikas Sharma Verified expert Tax & Compliance Expert

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Disclaimer: This article is for general informational purposes only and does not constitute professional tax, legal or financial advice. Laws, rates and due dates change and can vary by individual case — always verify with the relevant government source (e.g. mca.gov.in, incometax.gov.in) or consult a qualified professional before acting. TaxClue accepts no liability for decisions taken based on this content.

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Questions, answered

Short, direct answers to the 6 questions readers ask most on this topic.

Section 46(1)(a) lets the application proceed if the Registrar is satisfied that a company is about to be formed and registered and that you intend to assign the mark to it.

Yes. Section 46 bars refusal "on the ground only" of non-use or lack of proposed use by the applicant. Other grounds remain.

The registration ceases to have effect for those goods or services at the end of the period, and the Registrar amends the register.

Yes, by a further period not exceeding six months, on an application in the prescribed manner.

The Registrar or the High Court, as the case may be. Before the Tribunals Reforms Act, 2021 this read "tribunal".

Clause (b) covers the case where the proprietor intends a registered user to use the mark after registration.