Section 133 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 133 lets a person who proposes to apply for a trade mark ask the Registrar, before filing, whether the mark appears to him prima facie distinctive. If the advice is favourable and the person applies within three months, but the Registrar later objects on the ground that the mark is not distinctive, the applicant may withdraw and get back the fee paid on filing. For anyone choosing a brand name, a trademark registration service can check the mark and handle the application.
A person proposing to apply may, on application in the prescribed manner, ask the Registrar for advice on whether the mark appears to him prima facie to be distinctive. If the advice is in the affirmative and the application for registration follows within three months of the advice, and the Registrar after further investigation or consideration objects that the mark is not distinctive, the applicant can give notice of withdrawal within the prescribed period and have repaid any fee paid on the filing.
Sub-section (1): asking for advice
The text: "The Registrar may, on application made to him in the prescribed manner by any person who proposes to apply for the registration of a trade mark, give advice as to whether the trade mark appears to him prima facie to be distinctive."
| Element | Text |
|---|---|
| Who may ask | Any person who proposes to apply for registration of a trade mark |
| How | Application in the prescribed manner |
| What the Registrar may do | Give advice as to whether the mark appears to him prima facie to be distinctive |
| Standard | Prima facie, a first impression |
| Wording | "may give": it is a power, not an obligation |
Three things follow from the words.
- The section is for a person who proposes to apply. It does not require anyone to seek advice before filing.
- The advice is on distinctiveness only. It is not an opinion on whether the mark clashes with earlier marks, and the section says nothing about similarity to other marks.
- The advice is on how the mark "appears to him prima facie". It is a first view and is not binding on the Registrar, as sub-section (2) itself shows.
The form and any fee for the advice application are left to the Trade Marks Rules, 2017; the section states no fee amount, and we state none. If you want to know what the Rules say, check them directly.
Sub-section (2): what happens if you file after favourable advice
The text: "If, on an application for the registration of a trade mark as to which the Registrar has given advice as aforesaid in the affirmative made within three months after the advice was given, the Registrar, after further investigation or consideration, gives notice, to the applicant of objection on the ground that the trade mark is not distinctive, the applicant shall be entitled, on giving notice of withdrawal of the application within the prescribed period, to have repaid to him any fee paid on the filing of the application."
The conditions, step by step
| Step | Condition |
|---|---|
| 1 | The Registrar has given advice in the affirmative, that the mark appears prima facie distinctive |
| 2 | An application for registration of that mark is made within three months after the advice was given |
| 3 | The Registrar, after further investigation or consideration, gives the applicant notice of objection on the ground that the mark is not distinctive |
| 4 | The applicant gives notice of withdrawal of the application within the prescribed period |
| Result | The applicant is entitled to have repaid any fee paid on the filing of the application |
All four are needed. The refund is a right ("shall be entitled"), once the conditions are met.
What the refund covers and does not cover
- It covers "any fee paid on the filing of the application". The section does not state an amount or say whether other fees, such as the advice fee, are repaid. Do not assume they are.
- It depends on withdrawing the application "within the prescribed period"; the Act does not state that period.
- It arises only where the objection is "on the ground that the trade mark is not distinctive". An objection on another ground does not trigger the refund on the section's terms.
- The three months run from the date the advice was given, not from the date you applied for advice.
Example. Pillai Organics asks the Registrar, before filing, whether "PURE SPRING" appears prima facie distinctive for bottled water. The Registrar advises in the affirmative on 10 January. Pillai files its application on 25 March, which is within three months of the advice. After further investigation, the Registrar issues an objection that the mark is not distinctive. Pillai gives notice of withdrawal within the prescribed period and is entitled to repayment of the filing fee. Had Pillai filed on 15 May, outside the three months, sub-section (2) would not apply. Had the objection been on another ground, such as conflict with an earlier mark, the refund route would not apply.
Where this sits in the registration process
Distinctiveness is one of the points the Registrar looks at when examining an application. If you receive an objection of that kind, see the objection reply service and our article on the show-cause hearing. For the full application route, read how to search the IP India database before filing. A section 133 advice is a preliminary step before any of that.
The Act does not say the advice is public, how long it takes, or what happens to the advice after the three months pass. It also does not make a favourable view a promise: the Registrar may still object after "further investigation or consideration", and the section's only protection is the refund.
What section 133 is useful for
- Choosing between names. A person with a shortlist may use the advice to learn which marks appear prima facie distinctive. The text allows an application for advice on "a trade mark"; it does not say whether several marks can be put in one application, so check the Rules.
- Budgeting. If a favourable view is followed by an objection on distinctiveness, the filing fee can be recovered by withdrawing in time.
- Descriptive names. Marks that merely describe the goods are the usual risk on distinctiveness; the section itself does not give examples.
Practical points
- Diary the three months from the date the advice is given; file within it.
- Keep the advice with your records; it is the starting point for the refund.
- If an objection on distinctiveness arrives, note the "prescribed period" for withdrawal and decide quickly between replying and withdrawing.
- Remember that the advice is prima facie and on distinctiveness only.
Need help choosing and filing a mark?
If you are choosing a name or logo and want a clear view of how distinctive it is before you file, our trademark registration team can assess it, advise on whether to seek the Registrar's advice and prepare the application.
Key takeaways
- Section 133(1): a person proposing to apply may ask the Registrar for advice on whether the mark appears prima facie distinctive.
- Section 133(2): after favourable advice, an application within three months followed by an objection on distinctiveness lets the applicant withdraw within the prescribed period and recover the filing fee.
- The advice is a first view on distinctiveness only; the Registrar may still object after further investigation.
- The Act leaves the form, fee and withdrawal period to the Rules.
Read next
- Section 134: suit for infringement before the District Court
- Sections 131–132: extension of time and abandonment
- Trademark search before filing: how to search the IP India database
- Trademark show cause hearing: how to prepare and attend
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.