REGISTRATION of TRADEMARK IN INDIA

REGISTRATION of TRADEMARK IN INDIA

You are entrepreneur and you are thinking that the logo or the company name you registered should be protected so that no one else have right to copy the logo design and start marketing their business under your name, here’s the chance/ opportunity to safeguard your brand name easily.

Be it a visual symbol, which may be a word, name, device, label or numerals used by a business, its called Trademark. To distinguish it goods or services from other similar goods or services originating from a different business, you need to safeguard it. Registration of Trademark can also be obtained for a business name, distinctive catch phrases, taglines or captions. The Trademarks Act, 1999 provides protection to the owner of a trademark and imposes criminal liabilities for the infringement of the trademark owner’s rights.

To enjoy protection, the owner of a trademark must apply for registration with the Trademark Registrar of the Registry of Trademarks, India. But before we proceed ahead to understand the concept of Trademark in India, it is important to note that the name/ logo/ wordmark should be unique and meaningful, so that the chances to obtain it gets higher.

Keep in mind that the class you select for Trademark registration should be appropriate. To know the classes, see below;

What can be registered as trademark?

Any word, name, device, label, numerals or a combination of colors that can be represented graphically (in a paper) can be registered as a trademark. The trademark to be registered must also be distinctive for the services or goods for which it is proposed to be registered.

Who can apply for trademark registration?

Any person claiming to be the owner of the trademark used or proposed to be used can apply for trademark registration. The person can be an individual, company, NGO, etc.,

Duration For Trademark Application Process

About 12 to 18 months depending on various factors. Sometimes it can be longer if there are objections from the Registry or from third parties to be overcome.

Trademark Registration Tenure

It lasts 10 years and can be renewed for further period of 10 years. If you do not pay your renewal fee by the next renewal date, your mark will expire.

Use Public Search: 

It is recommended to conduct a Trademark availability search in order to check if any similar Trademark has been filed in India, which may oppose your registration. The cost of the search is generally quite insignificant in comparison to the costs of re-branding if there is difficulty in using the Trademark because it infringes the right of others.

http://ipindiaservices.gov.in/tmrpublicsearch/frmmain.aspx

Click the above link to check the availability. It is also recommended that you perform google search extensively to check whether the name you desire to register is already registered outside India.

Filing:

A trademark application can be filed for single or multi class.

Examination:

The Trademark office will examine the registerability of the application which includes distinctiveness, existing similarity with prior registrations, and completion of supporting documents, if accepted, the Trademark Office will issue an acceptance order and the Trademark is ordered for publication. 

Publication: 

Trademark applications accepted by the Registrar are published in Trademark Journal. Any interested party may file a notice of opposition to the registration of the mark within 3 months from the date of last publication.

Fees:

To apply for Trademark under one class, the government fees is Rs. 4000 INR one wordmark one class.

Documents/ Information required:

Name of the Applicant(s) (In case the Applicant is different from the company, mention both)
Designation of the Applicant: (Director/Proprietor/Partner etc.) Note: (N/A in case the applicant is Company, Partnership, Society, LLP) In case of two or more partners/directors, form should be filled in by each person separately.
Nationality:
Full Address of Applicant (Registered and Corporate Address in case of company): (District, State & Pin code are required)
Telephone No:
Fax No:
Email ID:
Description of the Business done and goods and services: (Eg. Manufacturer & Supplier of Laptops, Service Provider in the field of Law, Trader of agricultural products, Exporter of furniture etc.)
Name of Authorized Signatory (In case the applicant is not an individual)
Mark in Text (In case of Logo/Label please enclose soft copy or 10 hard copies)
Date from which Brand/Mark/Logo is being used: (DD/MM/YYYY) (Proof is required during the proceedings)
Is the mark registered in any other country than India? (If yes, please mention where and since when)
DOB of the Applicant

Also, it is required to submit the hard copy of Logo if you are safeguarding the logo design of your company

You can also download TM Manual from http://www.ipindia.nic.in/

To know more, call us at +9198719034449 or drop email at csnehaseth@gmail.com

How to form NGO/ Non Profit Making Company in India

Formation of Non Profit making Company:

When someone thinks to form NGO or Society or Trust or Section 8 Company (Earlier Section 25 Company), there come in mind various doubts, which is better, how to form, what are the minimum Requirements, documents required, etc. We have illustrated the idea to form Section 8 Company as per Companies Act 2013. I hope this will help you understand the concept in deep.

Meaning of Section 8 Company:

A Company which has main objective as Promotion of arts, science, commerce, sports, education, religion, charity or such other objectives, uses its profit for promotion of its objectives and doesn’t pay any dividend to its members. In simple words it is a Company with no intention to make a profit.

Who can form a Section 8 Company?

Any individual or association of persons can form a Section 8 Company.

How many people/ persons are required to form section 8 Company?

Minimum 2 people are required to set up a Section 8 company.

How to Register a Section 8 Company?

To register a section 8 company in India, the process is similar to the registration of other companies (Private Limited/ Public Limited) (except an additional license from RD (Regional Director) is required). 

Important point to be noted that Section 8 company cannot be formed in fast track in eForm INC 29

Procedure to register Section 8 Company:

1.    Obtain Digital Signature: It is compulsorily required to Obtain a  Digital Signature Certificate from authorized DSC issuing Company for at least one director to sign the E-forms related to incorporate like Form DIR 3, form INC.1 and other documents.

Documents Required:

-       PAN Card copy duly attested by Banker/ Gazetted Officer

-       Address Proof duly attested by Banker/ Gazetted Officer

-       Signed DSC Form affixed photo on it

2.    Obtain Director Identification Number: every individual intending to be appointed as director of a company shall make an application for allotment of Director Identification Number in form DIR.3 to the Central Government in such form and manner and along with such fees as may be prescribed.

Documents Required:

-       Self attested PAN

-       Self attested Address Proof

-       Passport Size colored photograph

3.    Name availability for proposed company: Name approval has to be obtained from the Registrar of Companies ["RoC"] by submitting an application in eForm INC 1. The name once approved by the authority is valid for 60 days. The Subscriber to the Memorandum and Articles of Association shall be the applicant for the availability of name application.

4.    License under section 8 for new companies with charitable objects: A person or an association of persons desirous of incorporating a company with limited liability shall make an application in Form No.INC.12,along with the prescribed fee, to the Registrar for a license under sub-section (1) of section 8.

Main attachments of Form INC.12 would be as follows:

(a)  The draft Memorandum of Association of the proposed company.

(b)  The draft Articles of Association of the proposed company.

(c)  The declaration in Form No.INC.14 by an Advocate, a Chartered Accountant, Cost Accountant or Company Secretary in practice,

(d)  The declaration by each of the persons making the application in Form No. INC.15.

(e)  An estimate of the future annual income and expenditure of the company for next three years, specifying the sources of the income and the objects of the expenditure

To know more or in case you need drafts, call us at +919871903449 or drop us email at csnehaseth@gmail.com

Relaxation of the additional fees and extension of last date of in filing of forms MGT-7(Annual Return) and AOC-4 ( Financial Statement) under the Companies Act, 2013

Ministry of Corporate Affairs

General Circular No. 10/2015

Dated:13^th July,2015

Ministry has clarified vide general circular 8/2014 dated 04/04/2014 that provisions of the Companies Act, 2013 relating to financial statement, auditors report and board’s report shall apply in respect of the financial years commencing on or after 1^st April,2014. Form AOC-4 or Form AOC-4 XBRL(Format of filing of financial statement) shall, as applicable, have to be used for filing of such statement for financial years commencing on and after 1^st April,2014. Attention is also invited to this Ministry’s general Circular 22/2014 dated 25/06/2014 wherein it has been clarified that MGT-7( Form of Annual Return) shall apply to annual returns in respect of financial years ending 1^st April,2014.

The electronic version of the Forms AOC-4, AOC-4 XBRL and MGT-7 are being developed and shall be made available for electronic filing latest by 30^th September 2015. In addition, a separate form for filing of Consolidated Financial Statement (CFS) with the nomenclature AOC-4 CFS will be made available latest by October 2015. MGT-7 has been notified while AOC-4, AOC-4 XBRL and AOC-4 CFS will be notified shortly.

In view of this, it has been decided to relax the additional fee payable on Forms AOC-4, AOC-4 XBRL and Form MGT-7 upto 31st October 2015. Further, a Company which is not required to file its financial Statement in XBRL format and is required to file its CFS would be able to do so in the separate form for CFS without any additional fees up to 30th November 2015.

For more information, please contact us at 9871903449 or drop email at csnehaseth@gmail.com

Participate in Board Meetings now through video conferencing

BOARD MEETINGS VIA VIDEO CONFERENCING

Board Meetings through Video Conference are now covered under Companies act, 2013:

Sections 173 and 174 of Companies Act, 2013 specifies the Board Meetings via Video Conferencing.

MODES OF PARTICIPATING IN BOARD MEETING:

1.    In Person

2.    Video Conferencing

3.    Audio visual means

           Video conferencing & Audio Visual means facilities shall be capable of recording  

           & recognizing the participation of the directors & storing the proceeding of such  

           meeting along with date and time.

WHO CAN PARTICIPATE IN MEETING THROUGH ELECTRONIC MODE:

1.    Chairperson

2.    Directors

3.    Company Secretary

4.    Any other person whose presence is required by the board.

They can participate either physically or through video conferencing without the permission of the board.

NOTICE OF THE MEETING:

1.    Company shall send the notice to all the directors before seven days of the meeting.(In case of shorter notice one independent director shall be present at the meeting)

2.    Such notice shall provide information about the option of video conferencing.

3.    A director intending to participate through video conferencing will intimate to Chairperson or Company Secretary of the Company (in the absence of any intimation, it assumed that the director shall attend the meeting in person).

RESPONSIBILTY OF CHAIRPERSON AND COMPANY SECRETARY:

1.    To safeguard integrity of meeting

2.    To ensure availability of proper video conferencing or audio visual means

3.    To record proceedings and prepare minutes of the meetings.

4.    To store, safekeeping and marking recordings of the meetings before the time of completion audit of that particular year.

5.    To ensure that only concerned directors ar3e attending meeting

6.    To ensure that the required quorum is present throughout the meeting.

PROCEDURE TO CONDUCT THE PROCEEDINGS OF THE MEETING:

1.    Inform the board the name of the person (other than directors) who are present at the meeting, at the request or with the permission of chair

2.    Confirm that the required quorum is complete.

3.    A roll call shall be taken by the chairperson:

·         At the commencement of the meeting.

·         When every director participating through video conferencing/audio visual means.

(ensure Name, the location from where Director is participating, that director has received the agenda and all the relevant material for the meeting).

IMPORTANT PROVISION:

1.    Intimation given in the beginning of calendar year to attend meeting through electronic mode shall be valid for the year.

2.    Scheduled venture of the meeting shall be specified in the notice and it shall be deemed to be place of meeting.

3.    Statutory registers required to be placed at the scheduled venue of the meeting.

4.    Registers deemed to be signed by the directors participating through electronic mode if they give their consent in this behalf.

5.    In case of interrupted or garbled statement, same shall be repeated or reiterated.

6.    Particulars of direct attended meeting through electronic mode shall be disclosed in minutes.

MATTERS NOT TO BE DEALT THROUGH VIDEO CONFERENCING OR OTHER AUDIO VISUAL MEANS:

1.    Approval of Annual financial statements.

2.    Approval of the Board’s report.

3.    Approval of prospectus

4.    Audit committee meeting for consideration of financial statement including consolidated financial statement, if any, to be approved by the board u/s 134(1).

5.    Approval of the matter relating to amalgamation, merger, demerger, acquisition and takeover.

To know more call us at 9871903449 or email us at csnehaseth@gmail.com

Understanding the event based compliances of a company under Companies Act 2013

There are many instances when you need to inform the Registrar of Companies for various changes, additions, deletions in action in your Private Limited Company, we have tried to cover every possible event in the given chart below;

1. Intimation of approval of Financial Statements and Board Report etc to the Registrar
eForm MGT 14 is required to be filed within 30 days of Board Meeting in which the financials have been approved. DELETED

2. Filing of Financials with ROC
eForm AOC 4 required to be filed within 30 days of AGM. AGM due date chart (Example) given below;

AGM due Date Chart

Particulars	Date
Date of Incorporation	21/07/2014
Date of closing of First FY	31/03/2015
Due date of first AGM (within 9 months from the date of closing first FY)	31/12/2015
Date of closing 2nd FY	31.03.2016
Due date of Second AGM (not more than 15 months from 1st AGM) Suppose 1st AGM held on 30.09.2014	31/12/2016
Due date of Second AGM (within 6 months from the date of closing of second FY)	30/09/2016
Due date of Second AGM shall be earlier of above two	30.09.2016

To know which is your First Financial Year, please click below;
http://csnehasethassociates.blogspot.in/2015/08/what-is-your-companys-first-financial.html

Documents required are;

- Copy of Audited Financials

- Supp or Test Audit Report

- P& L Account

-CSR Policy

-CSR Report

3. Internal Auditors Appointment

eForm MGT 14 is required to be filed within 30 days of Passing Board Resolution. 

4. Maintaining Books of Accounts at a place other than Registered Office of the Company

eForm GNL 2 is required to be filed with the ROC within 7 days of Board Meeting

5. When Books of Accounts are maintained electronically, then, also there is a requirement to intimate ROC

6. Issue of Equity shares on Private Placement/ Rights Issue or Bonus Issue

Check the Article on Private Placement below;

http://csnehasethassociates.blogspot.in/2015/06/how-to-raise-funds-in-private-limited.html

7. When you alter Share Capital, you need to intimate ROC within 30 days of passing Special Resolution along with Altered MOA & AOA

8. Appointment of New Director

First Get DSC of the new proposed Director, and apply for DIn (if not having already), then intimate ROC by filing eForm DIR 12 along with the consent to act as Director in Form DIR 2

9. Resignation by existing Director

Filing of Form DIR 11 & eForm DIR 12 along with the Resignation letter and proof of dispatch of notice of cessation

10. Filing for Appointment of Managing Director

When you are appointing MD, intimate ROC by filing Board Resolution within 30 days of passing Board Resolution. Even if you are re-appointing MD or filing for renewal, you need to intimate ROC within 30 days of BR 

11. Reappointment of Independent Director in General Meeting

Copy of Resolution along with copy of Explanatory Statement and Special Resolution and DIR 2 in eForm DIR 12 and eForm MGT 14

To know more, call us at 9540074449 or email us at csnehaseth@gmail.com

Relief for Private Limited Companies, Further exemptions issued by MCA

Exemptions to Private Companies

Now, it is easy to incorporate a private company, because MCA grants some exemptions to Private Company.MCA issued notifications of exemptions to private company on June 5, 2015.The exemptions are as follows:

ü  Compliance Burden Reduced:

Filing of any of the 14 items of Board Resolutions in MGT 14 Waived for Private Companies

Now, there is no need to file Board Resolution with Registrar of Companies. Therefore, after incorporation Form MGT-14 is not required to be filed with Registrar of Company for passing Board Resolution. The resolution of the board will still be required. All that is exempted is the need to file a resolution with the Registrar. MGT 14 is required to be filed only in case of Special Resolution

ü  Participation of Interested Directors:

The directors of a private company must refrain from participating in a board meeting where a matter in which they are interested is to be discussed. The final notification thankfully retains the same with the condition that an interested director may participate only after disclosure of such person’s interest. Interested Director can now participate in agenda in which he is interested. He cannot be counted in Quorum

ü  Restriction on Powers of Board not Applicable in case you are a Private Limited Company:

The exercise of borrowing powers by private companies will not require any special resolution to be passed

ü  Loans by Private Companies:

Giving Loans to Sister Concerns is really difficult as per Companies Act 2013. There is a restriction on lending limit by Private Companies. It is important to note that earlier as per Companies Act 1956, there was no limit for lending to sister concerns or to those in which Directors have interest. Even banks find it difficult to treat Guarantees and collaterals from related parties.

A partial exemption has been given to Private Limited Companies giving loan to sister concerns on satisfying with the below mentioned conditions;

 1. Body Corporate should not be Shareholder in Private Limited Company which is lending loans to Related Entities

2. The lending company’s aggregate borrowings from other bodies corporate or banks or financial institutions is limited to lower of;

a. Twice of Net worth

b. Rs. 50 crores

 3.      No repayment default subsisting of such borrowings at time of giving loan

Can Give loans/ guarantee/security to Group Companies now.

ü  Deposits From Members:

Private Companies borrowing monies from members upto aggregate limit of paid-up share capital & free-reserves need not require to comply with conditions mentioned in section 73(2)(a) to (e). which shows If Such Company borrows money from member then no need to:

– Issue Circular -File circular with ROC

 -Maintain Deposit repayment reserve

-Provide deposit insurance.

However details of money so borrowed shall be filed with ROC in manner as may be specified.

ü  Limit on Company Audits:

The limit of 20 on company audits will now exclude all one person companies, dormant companies, small companies, and private companies having a paid up share capital of less than Rs. 100 crores.

ü  Right of Persons Other Than Retiring Directors to Stand for Directorship

ü  Appointment of Directors No Longer to be Voted Individually:

             More than 1 director can be appointed via single resolution

ü  Relaxation Withdrawn in Case of Related Party Transactions:

Does not include Holding, Subsidiary, Associate Company and sister concern(subsidiary of holding). Transactions entered with them and falling under section 188 does not require compliance of section 188. Note:- Although Holding company is excluded but Director(other than independent Director), KMP of holding company or their relative are still included in definition of Related Party. (Section 2(76)(ix).

 To know more, send us email at csnehaseth@gmail.com or call us at 9540074449

How to raise funds in a Private Limited Company

In a Company registered as per Companies Act, 2013, there are three methods through funds can be raised;
a. Deposits
b. Loans
c. Capital

Raising Capital in a company requires great attention. There can be further three sub points to raising capital in a Private Limited Company;
a. Private Placement
b. Rights Issue
c. Bonus Shares

Private Placement is actually issuing shares to select group of people may be existing shareholders, friends, family etc
For Private Placement, there are procedures defined as per Companies Act 2013. You can read the article given in the blog on Private Placement of Shares at
http://csnehasethassociates.blogspot.in/2015/05/private-placement-of-shares.html

Coming to RIGHTS ISSUE,

A rights issue is directly offered to all existing shareholders of  the Company in proportion to their current holding. The company also set a time limit for the shareholder to buy the shares. Companies pursue Rights Issue as an avenue to raise funds for various reasons, ranging from expansion or acquisitions to paying down debts.

Section 62 of Companies Act, 2013 contains provisions on “further issue of capital”, and enacts the principle of pre-emptive rights of shareholders of a company to subscribe to new shares of the company.

Provisions of Section 62 of Companies Act, 2013 are mandatory for all Private companies, public Companies, listed as well as unlisted companies.

RELEVANT PROVISIONS OF COMPANIES ACT-2013:

Sec 62 (1) Where at any time, a company having a share capital proposes to increase its subscribed capital by issue of further shares, such shares shall be offered :

(a) to persons who, at the date of the offer, are holders of equity shares of the company in proportion, as nearly as circumstances admit, to the paid-up share capital on those shares by sending a letter of offer subject to the following conditions, namely:—

(i)         the offer shall be made by notice specifying number of shares offered and limiting a time not being less than 15 days and not exceeding 30 days from the date of the offer within which the offer, if not accepted, shall be deemed to have been declined;

(ii)        unless the articles of the company otherwise provide, the offer aforesaid shall be deemed to include a right exercisable by the person concerned to renounce the shares offered to him or any of them in favour of any other person; and the notice referred to in clause (i) shall contain a statement of this right;

(iii)       after the expiry of the time specified in the notice aforesaid, or on receipt of earlier intimation from the person to whom such notice is given that he declines to accept the shares offered, the Board of Directors may dispose of them in such manner which is not dis-advantageous to the shareholders and the company;

PROCEDURE FOR ALLOTMENT OF SHARES ON RIGHT ISSUE BASIS :

• Issue notice in writing to every Director at least seven days’ before convening the Board meeting. [Sec 173 (3)]
• 
  
• Convene a Board Meeting
• Pass a Board resolution for approving “Letter of offer”. The offer letter shall include right of renunciation also.
• Dispatch Letter of offer to all existing shareholders through registered post or speed post or through electronic mode at least three days before the opening of the issue.
• Receive acceptance, renunciations, rejection of rights from shareholders.
• Issue notice in writing to every Director at least seven days’ before convening the Board meeting. [Sec 173 (3)]
• Convene a Board Meeting
• Pass Board resolution for approving allotment and issue of shares.
• File with Registrar a return of allotment in E-Form PAS-3 within 30 days of allotment of shares.
• File E-form MGT 14 within 30 days of Issue of securities.

OTHER INFORMATION:

• There is no prescribed format for “Letter of offer” to be issued, in case of right issue of securities. Format of Letter of offer” prescribed in Section 42 Companies Act, 2013  and rule 14(1) of Companies (Prospectus and Allotment of Securities) Rules, 2014 and not for Section 62.

• Letter of offer shall specify the number of shares offered and other information and limiting a time not being less than fifteen days and not exceeding thirty days from the date of the offer within which the offer, if not accepted, shall be deemed to have been declined;

• Attach with E-Form PAS-3 (i) Board Resolution for allotment and issue of share. (ii) Letter of offer (iii) List of Allottees

• List of Allottees attached with E-Form PAS-3 shall state the names, address, occupation, if any, of the shareholder and number of securities allotted to each of the allottees and the list shall be certified by the signatory of the Form PAS-3 as being complete and correct as per the records of the Company.

Please note that Rights Issue is desirable option if you are issuing shares at par even if you are issuing shares to new shareholders who may be relatives of existing Shareholders.

Right issue to existing share holders in the ratio (Total funds required/value of share = No of rights to be issued) . Thereupon work out the ratio in which the existing shareholders get their rights (Total new shares/existing shares). 

Now that  shareholders will subscribe & renounce the surplus in favour of their respective relatives as this process is less cumbersome compared to Private Placement. 

My Views: For rights issue no valuation is required, not required to open separate bank account, board approval is sufficient, issue price can be determined by the board. The option holder always have right to renounce their right options.

 This is no way a illegal methodology as all the outsiders are relatives to the shareholders, lets give them excess and they have option to renounce, upon which you bring them. This should work fine.

For formats for Rights Issue, please contact us at CS Neha Seth at csnehaseth@gmail.com

or call us at 9540074449