In India, a trademark application can be filed even before a business actually begins using the brand name or logo in the market. This type of trademark filing is known as a “proposed to be used” trademark. It allows entrepreneurs, startups, and new businesses to secure legal ownership over a brand identity before launching their products or services. By doing so, it prevents others from claiming the same mark and gives the applicant time to build and introduce the brand commercially.
This article explains the meaning, purpose, legal background, requirements, and practical significance of a “proposed to be used” trademark under the Trade Marks Act, 1999.
Introduction
For every company that wants to create its own unique brand identity, registering a trademark (whether it be their name, logo, tagline, product design, or symbol) gives customers a way to identify the origin of the goods and services. This application will reserve the applicant’s trademark name for the applicant prior to beginning any marketing activities or commercial activity. This application is valuable to a new business as they continue to develop their brand, create new products or enter new markets.
What Does “Proposed to Be Used” Trademark Mean?
A “proposed to be used” trademark is one where the applicant has not yet begun using the mark in the market but intends to use it in the future. The applicant expresses this intention by marking “proposed to be used” in the application form filed with the Trademark Registry.
In simple words, it means –
“I have not started using this trademark yet, but I plan to use it soon and want legal protection in advance.”
This is extremely important in a competitive business environment where brand names tend to clash, and one delay may allow someone else to claim a similar mark.
Legal Basis and Recognition Under the Trade Marks Act, 1999
The Trade Marks Act, 1999, recognises both –
- trademarks already in use, and
- trademarks proposed to be used.
The Act does not require proof of use at the time of application. Instead, the law allows applicants to file even when:
- The business idea is under development
- Product manufacturing has not begun
- The service is not yet launched
- Branding and packaging work is still being finalised
The legal requirement is that the applicant must have a bona fide intention to use the mark in the near future. This prevents misuse of the system by those who file marks just to block others without any business intent.
Why is the Concept Important?
The idea of “proposed to be used” marks is crucial for several reasons, especially in the modern startup environment.
- Early Protection of Brand Name: It protects the trademark before the public launch of the business. Competitors cannot file the same or a similar mark once your application is submitted.
- Helps Startups and New Ventures: Many entrepreneurs take time to set up operations. This provision allows them to secure branding in advance while the business plan is still evolving.
- Useful for Product Expansion: Companies often introduce new product categories. They can file the trademark in advance to reserve brand names for future product lines.
- Supports Investment and Funding: Investors prefer businesses with secured intellectual property. A proposed-to-be-used filing shows seriousness and preparedness.
- Prevents Loss of Brand Identity: Sometimes, trademarks get stolen or registered by opportunistic individuals. Early filing avoids such conflicts.
In short, this concept gives businesses the confidence to develop branding without worrying about someone claiming the name first.
When Should a Business Use a Proposed to Be Used Filing?
While it may appear that this option is ideal for every new mark, it is most useful in specific situations.
A business should apply as “proposed to be used” when the product or service is still under preparation. For example –
- You have designed the brand name and logo but are still setting up operations.
- You are waiting for licences, manufacturing setups, or raw materials.
- You plan to launch soon, but want to secure the name beforehand.
- You are entering a new market and want to block the brand name in advance.
This is common in industries such as cosmetics, apparel, restaurants, tech startups, FMCG goods, and personal care.
Condition of Use After Registration
A proposed-to-be-used trademark, once registered, enjoys full protection like any other trademark. But the law expects the owner to actually use the trademark for commercial purposes.
If the trademark is not used for five consecutive years after registration, it can be challenged by another party for non-use. This rule exists to prevent applicants from registering marks indefinitely without actual business activity.
Once the trademark starts being used, the owner should maintain records such as:
- invoices,
- packaging,
- advertisements,
- website listings,
- product labels.
These documents may be useful if proof of use is ever required.
Documents Required for Filing a Proposed to Be Used Trademark
The process is simple, and the documentation depends more on identity and intention than proof of use. Usually, the applicant needs:
- name and address of the applicant
- trademark representation (logo, name, or design)
- class of goods or services
- authorisation documents (if filed through an agent)
Since actual use is not required, no sales bills or advertisements are needed at the filing stage.
Practical Example
Consider a startup planning to launch organic skincare products under the brand name “AromaEarth.”
The company is still working on formulations, licences, and packaging. To avoid someone else registering the brand name during this period, the owner files a trademark application under “proposed to be used.”
This application blocks others from claiming a similar mark and allows the company to launch the product under the protected brand once ready.
This is precisely how thousands of startups safeguard their brands before entering the market.
Difference Between “Used” and “Proposed to Be Used” Applications
While both are legitimate types of applications, the difference lies in the stage of business.
- A “used” mark is one already present in the market. The applicant provides the date of first use and may submit proof.
- A “proposed to be used” mark is not used yet, but is planned for the future.
No preference is given to either type during registration. What matters is the distinctiveness and legality of the mark itself.
Conclusion
A “proposed to be used” trademark is a valuable tool for anyone who wants to protect a brand name before officially launching a business. It is recognised under Indian trademark law and plays a significant role in preventing name conflicts, supporting brand strategy, and helping entrepreneurs secure intellectual property during early planning stages.
By filing a trademark at the ideation stage, a business can confidently build its branding, invest in packaging, or prepare marketing activities without worrying about name duplication. This makes the concept especially important in today’s competitive market, where brands move fast and often overlap.
