Section 12 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 12 is a single sentence with a large effect. It allows the Registrar, in the case of honest concurrent use or other special circumstances, to permit more than one proprietor to register identical or similar marks for the same or similar goods or services. It is the exception to the clash rule in section 11, which opens "Save as provided in Section 12".
Where there is honest concurrent use or other special circumstances which, in the opinion of the Registrar, make it proper, he may permit registration by more than one proprietor of trade marks that are identical or similar, whether any such mark is already registered or not, for the same or similar goods or services, subject to conditions and limitations he thinks fit. It is a discretion, not a right.
The text, broken into parts
The section reads, in effect: "In the case of honest concurrent use or of other special circumstances which in the opinion of the Registrar make it proper so to do, he may permit the registration by more than one proprietor of the trade marks which are identical or similar (whether any such trade mark is already registered or not) in respect of the same or similar goods or services, subject to such conditions and limitations, if any, as the Registrar may think fit to impose."
| Part | Text | What it means |
|---|---|---|
| Trigger | Honest concurrent use, or other special circumstances | Two routes; either can be relied on |
| Test | "In the opinion of the Registrar" | The Registrar forms the view |
| Standard | Make it proper so to do | The Registrar must regard it as proper |
| Power | May permit registration by more than one proprietor | Discretionary; "may", not "shall" |
| Marks | Identical or similar | Close marks, up to identical |
| Status | Already registered or not | The other mark need not be on the register |
| Goods or services | Same or similar | Even the overlap case is covered |
| Control | Conditions and limitations, if any, as the Registrar thinks fit | The permission can come with terms |
Where it fits among the grounds for refusal
Section 11(1) says a mark shall not be registered where an earlier trade mark and similar goods or services create a likelihood of confusion, "save as provided in Section 12". Section 12 is therefore the door that lets two similar marks co-exist on the register despite 11(1). If your application has met a cited-mark objection, a trademark objection reply is where your written answer to that objection is put forward.
Section 11(4) links to it directly: where the proprietor of the earlier trade mark or other earlier right consents to the registration, "the Registrar may register the mark under special circumstances under Section 12". Consent is one way of getting to the "special circumstances" the section mentions. The section itself does not list what counts as a special circumstance, and the text does not define "honest concurrent use". If you rely on either, state the facts clearly and check the Rules for the procedure.
"Honest concurrent use"
The words describe two traders using similar marks side by side, honestly, for the same or similar goods or services. The section does not set a minimum period, a minimum turnover or a geographical test. It leaves the question to the Registrar's opinion. Evidence of how long and where each mark has been used, and that the use was honest, is what you would expect to put forward; the Act does not prescribe a list.
Example. Two sweet shops, one in Jaipur and one in Pune, have for decades traded as "Rajdhani Sweets", unaware of each other. Both apply to register the name. The Registrar may, under section 12, permit both to be registered, with conditions such as limits on the area or manner of use. The text lets the Registrar do this; it does not oblige him.
"Other special circumstances"
The phrase is open. Section 11(4) shows one: consent of the earlier proprietor. The text does not give other examples. An applicant who relies on "special circumstances" should say what they are and why the Registrar should regard it as proper to register the mark.
Conditions and limitations
Registration under section 12 is "subject to such conditions and limitations, if any, as the Registrar may think fit to impose". The definition of "limitations" in 2(1)(l) includes limitations as to mode or area of use within India or outside India. So the Registrar's terms can be about where or how each proprietor may use the mark, and they appear on the register: section 6(1) provides for entry of "conditions, limitations". A registered proprietor's right under such a registration is shaped by those terms. You should read the entry on the register before relying on a co-existing registration. See section 6.
Section 12 and associated marks
Section 16 deals with marks of the same proprietor that resemble each other, and section 12 deals with marks of different proprietors. Do not confuse them: association is about one owner's marks; section 12 is about permitting registration by more than one proprietor.
Practical points
- Treat it as an exception. The first question is still whether section 11 or section 9 stops registration; section 12 is a route if it does.
- Gather proof of honest use: dated invoices, advertisements, sales records, geographical spread.
- Consider a written consent or co-existence terms with the other proprietor; see our coexistence agreement draft. The Registrar is not bound to accept it, because the power is discretionary.
- Accept that conditions may come with it. Be ready for limits on area or manner of use.
- Put your case in the reply. If an examiner cites an earlier mark, the reply is where honest concurrent use or special circumstances are argued.
Need help with a concurrent use claim?
If another trader's mark stands in the way and both of you have been using yours honestly, a section 12 request may be an option. Our trademark objection reply team can build the factual case, prepare the evidence and represent you.
Key takeaways
- Section 12 lets the Registrar permit registration by more than one proprietor of identical or similar marks for the same or similar goods or services.
- Triggers: honest concurrent use or other special circumstances.
- The test is the Registrar's opinion; the power is discretionary ("may").
- The other mark can be already registered or not.
- The Registrar may impose conditions and limitations as he thinks fit.
- Section 11(1) opens "Save as provided in Section 12", and 11(4) refers to consent under section 12.
- The text does not define honest concurrent use or list special circumstances.
Read next
- Section 11: relative grounds for refusal of registration
- Sections 13-14: chemical names and names of living or dead persons
- Section 16: associated trade marks
- Trademark coexistence agreement: draft
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.