Approval of
Name pursuant to Section 4 (2) & 4(4) to be read with Rule 8 & 9 of the
Companies (Incorporation) Rules 2014
Issues:
1.
How to decide a relevant Name?
2.
How to get the decided name approved in one go?
The above two questions have
become a major task these days. To get rid of these issues, following steps
must be kept in mind:
Solution:
First of all, we must know how to decide a
name within the regulatory framework.
1.
The name must not be registered under any trademark class. Check
on MCA in trademark classes.
2.
Such name must not be similar or identical to any existing name as
provided under section 4(2) of the Companies Act 2013 read with rule 8 of the
Companies (Incorporation) Rules 2014 (Annexure-A).
3.
The name shall be able to describe the object of the company.
4.
The name must not be undesirable in opinion of Central Government neither
be offensive as provided under section 4(2) of the Companies Act 2013.
5.
Comply with the criteria provided under Section 4(2) along with
rule 8 of the Companies (Incorporation) Rules, 2014.
6.
As per provisions of Rule 8 (2) of above said rules the name must
not attract the provisions of Section 3 of the Emblems and Names (Prevention
and Improper Use) Act, 1950 (12 of 1950) annexed herewith (Annexure –B).
Forms and attachments:
-
INC-1 for Reservation/availability of Name as provided under
section 4 (4) read with rule 9 of the Companies (Incorporation) Rules 2014
along-with prescribed Fee.
-
Details Required:
(a)
DIN or PAN of applicant. (Prefer to enter DIN incase applicant is
having DIN)
(b)
Enter DIN for promoter and Directors (one in case of OPC, Two in
case of Private Company, Three in case of Public Company and Five in Case of
Producer). Obtain DIN if they are not having DIN
(c)
Enter Any SIX NAMES which
should be in accordance to the Rules and Regulations.
Attachments:
For Private
/Public Company
Not Required
For Producer Company
Separate Document for Main Objects signed by
the promoters
List of remaining Subscribers (if
any)
Validity of Name
Pursuant to the provisions of Section 4(5) of
the Companies Act 2013, the name will be valid for a period of 60 Days from the
date on which the application for Reservation was made to the Registrar.
Conclusion:
1.
The name must be in conformity with the provisions of Companies
Act as well as the section 3 of the Emblems and Names (Prevention and Improper
Use) Act, 1950.
2.
To avoid rejection the Name must indicate the purpose or
object of the company, though it is not prescribed in the Act.
3. Any
of the directors who is applying for Name or involved in incorporation later,
must not be disqualified under the companies Act 2013. This may lead to
rejection of a even a valid name.
4.
Once the name gets approve, Apply
for incorporation within 60 days of such name approval, because after the
expiry of this term name will got expire and company cannot be incorporated in
such name.
Annexure- A
Pursuant to the provisions of Rule 8 (Undesirable names) of the
Companies (Incorporation) Rules 2014:
(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);
(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 trademark, as the case may be, has been obtained and
produced by the promoters; Substituted vide notification dated 27.07.2016,
Companies (Incorporation) Third Amendment Rules, 2016 with following:
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)
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; (omitted as per Notification G.S.R.
99(E) dated 22.01.16)
(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;
(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
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 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) 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: (Omitted as
per Notification G.S.R. 99(E) dated 22.01.16).
(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)
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. (Omitted as per Notification
G.S.R. 99(E) dated 22.01.16).
(4)
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. (Omitted as per Notification G.S.R. 99(E) dated 22.01.16)
(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 Corporation and the
like; (Comma between Financial and
Corporation has been omitted as per Notification G.S.R. 743 (E) dated
27.07.2016) (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.
Annexure-B
As per Section 3 (Prohibition of
improper use of certain emblems and names) of the Emblems and Names (Prevention
and Improper Use) Act, 1950 (12 of 1950):
Notwithstanding anything contained in any law for the time being
in force, no person shall, except in such cases and under such conditions as
may be prescribed by the Central Government use, or continue to use, for the
purpose of any trade, business, calling or profession, or in the title of any
patent, or in any trade mark or design, any name or emblem specified in the Schedule or, any colorable imitation
thereof without the previous permission of the Central Government or of such
officer of Government as may be authorized in this behalf by the Central
Government.
Following
are the provisions provided in the schedule to Section 3 of the Emblems and
Names (Prevention and Improper Use) Act, 1950 (12 of 1950):
1.
The name,
emblem or official seal of the United Nations Organization.
2.
The name,
emblem or official seal of the World Health Organization.
3.
The Indian
National Flag.
4.
The name,
emblem or official seal of the Government of India or of any State, or any
other insignia or coat-of-arms used by any such Government or by a Department
of any such Government.
5.
The emblems
of the St. John Ambulance Association (India), and the St. John Ambulance
Brigade (India), consisting of the device of a white eight pointed cross
embellished in the four principal angles, whether or not the device is
surrounded or accompanied by concentric circles or other decoration or by
lettering.
6.
The name,
emblem or official seal of the President,
Governor, Sadar-i-Riyasat or Republic or Union of India.
7.
Any name,
which may suggest or be calculated to suggest-
(i)
The
patronage of the Government of India or the Government of a State; or
(ii)
Connection
with any local authority or any corporation or body constituted by the
Government under any law for the time being in force.
8.
The name,
emblem or official seal of the United Nations Educational, Scientific and
Cultural Organization.
9.
The name or
pictorial representation
of Rashtrapati, Rashtrapati Bhavan, Raj Bhavan.
9-A. The name of pictorial
representation of Mahatma Gandhi, Pandit Jawaharlal Nehru, Chhatrapati Shivaji Maharaj or
the Prime Minister of India or the words “Gandhi”, “Nehru” or “Shivaji”, except
the pictorial use thereof on calendars where only the names of the
manufacturers and printers of the calendars are given and the calendars are Dot
used for advertising goods.
10.
The medals,
badges or decorations instituted by the Government from time to time or the
miniatures or replicas of such medals, badges or decorations or the names of
such medals, badges or decorations or of the miniatures or replicas thereof.
11.
The name,
emblem or official seal of the International Civil Aviation Organization.
12.
The word
“Interpol” which is an integral part of the International Criminal Police
Organization.
13.
The name,
emblem or official seal of the World Meteorological Organization.
14.
The name,
emblem of the Tuberculosis Association of India.
15.
The name,
emblem and official seal of the International Atomic Agency,
16.
The names
“Ashoka Chakra” or “Dharma Chakra” or the pictorial representation
of Ashoka Chakra as used in the India National Flag or in the
official seal or emblem of the Government of India or of any State Government
or of a Department of any such Government.
17.
The name of
the Parliament or the Legislature of any State, or the Supreme Court, or the
High Court of any State, or the Central Secretariat, or the Secretariat of any
State Government or any other Government Office or the pictorial representation
of any building occupied by any of the aforesaid institutions.
18.
The name and
emblem of the Rama Krishna Math and Ramakrishna Mission consisting of
a Swan floating on waters, with a lotus in the foreground and the rising sun in
the background, the whole being encircled by a hooded serpent, with the words
superimposed on the bottom portion.
19.
The names
and emblems of the Sri Sarada Math and
Ramakrishna Sarada Mission consisting of a Swan (facing right)
floating on water, with a Lotus in the foreground and the rising sun in the
background, the whole being encircled by a wild serpent (facing right) with the
words superimposed on the bottom portion.
20.
The name of
the Bharat Scouts and Guides' with its 'Emblem'.
21.
The name and
emblem of the International Olympic Committee consisting of five interlaced
rings.
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