Sections 35 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.
Two savings sit side by side. Section 35 says a registered proprietor cannot stop another person from honestly using his own name, place of business or an honest description of his goods or services. Section 36 deals with a registered mark whose word later becomes the ordinary name of an article or service, and what that does to the proprietor's rights.
Section 35: nothing in the Act entitles the proprietor or a registered user to interfere with bona fide use by a person of his own name or place of business (or those of a predecessor in business), or of a bona fide description of the character or quality of his goods or services. Section 36: a registration is not invalid by reason only of later use of its word as the name or description of an article, substance or service, but if well-known and established use or two years after a patent ceased is proved, the proprietor's rights in that word are deemed to have ceased.
Section 35: your own name, place and honest descriptions
"Nothing in this Act shall entitle the proprietor or a registered user of a registered trade mark to interfere with any bona fide use by a person of his own name or that of his place of business, or of the name, or of the name of the place of business, of any of his predecessors in business, or the use by any person of any bona fide description of the character or quality of his goods or services."
| Protected use | Text |
|---|---|
| Own name | "his own name" |
| Own place of business | "that of his place of business" |
| Predecessors' names | "the name, or ... the name of the place of business, of any of his predecessors in business" |
| Descriptions | "any bona fide description of the character or quality of his goods or services" |
| Condition | The use must be "bona fide" |
Key points:
- The words are "bona fide use" for names and "bona fide description" for goods and services. Honesty is the test; the section does not define it.
- The restriction on the registered proprietor applies to the "proprietor or a registered user".
- It is a saving: nothing in the Act, including section 29, entitles the proprietor to interfere with that use.
- The section speaks of "a person" and "his own name". It does not say whether the protection reaches a company's corporate name or how a descriptive word is to be judged. The text is silent; take advice if that is the question.
Example. Dr. Sneha Rao runs a dental clinic under "Rao Dental Care". A registered mark "RAO DENTAL" exists for dental services elsewhere. Section 35 saves her bona fide use of her own name. If you face a complaint like this, a legal consultation before you reply can save time.
Section 36(1): later use of the word as a name does not invalidate registration
"The registration of a trade mark shall not be deemed to have become invalid by reason only of any use after the date of the registration of any word or words which the trade mark contains or of which it consists as the name or description of an article or substance or service."
So if the public later begins using a word from your mark as the name of the product or service, that alone does not make the registration invalid. The proviso then says when that protection is lost.
The proviso: two situations that trigger sub-section (2)
"Provided that, if it is proved either— (a) that there is a well-known and established use of the said word as the name or description of the article or substance or service by a person or persons carrying on trade therein, not being use in relation to goods or services connected in the course of trade with the proprietor or a registered user of the trade mark or (in the case of a certification trade mark) in relation to goods or services certified by the proprietor; or (b) that the article or substance was formerly manufactured under a patent that a period of two years or more after the cesser of the patent has elapsed and that the said word is the only practicable name or description of the article or substance, the provisions of sub-section (2) shall apply."
| Route | What must be proved |
|---|---|
| (a) | A well-known and established use of the word as the name or description of the article, substance or service, by persons carrying on trade in it, other than use connected with the proprietor or a registered user (or, for a certification mark, use for goods or services certified by the proprietor) |
| (b) | The article or substance was formerly made under a patent, two years or more have passed since the patent ceased, and the word is the only practicable name or description of the article or substance |
Clause (b) refers to an article or substance; the printed proviso does not mention services in clause (b).
Section 36(2): consequences
Where the facts in clause (a) or (b) are proved for any words:
| For | Consequence |
|---|---|
| (a) Proceedings under section 57, if the mark consists solely of such words | The registration, so far as it concerns the article, substance or service in question or goods or services of the same description, is deemed an entry wrongly remaining on the register |
| (b)(i) Any other legal proceedings, if the mark consists solely of such words | All rights of the proprietor under this Act or any other law to use the mark, for that article or substance or goods or services of the same description, are deemed to have ceased |
| (b)(ii) Any other legal proceedings, if the mark contains such words and other matter | All rights of the proprietor to use such words in that relation are deemed to have ceased |
The rights are deemed to cease on the date on which the well-known and established use first became so (clause (a) of the proviso), or at the expiry of the two years (clause (b) of the proviso).
Example. A pharmaceutical company registered the coined word "ZIPCOOL" for a cooling gel. Over the years, every trader in the field uses "zipcool" for any such gel, and not in connection with the proprietor. If that well-known and established use is proved, the rights in the word "ZIPCOOL" for such gels are deemed to have ceased from the date that use first became well known and established.
What the sections do not say
- Neither section defines "bona fide" or "well-known and established use".
- Section 36 does not say who must prove the facts; it says "if it is proved".
- No fee, form or time limit other than the two years in clause (b).
- Section 35 does not say how a dispute about honesty is decided.
Practical points
- Choose a coined word. A mark likely to become the ordinary name of the product is exposed to section 36.
- Keep records of how the word is used. Section 36 turns on use by others that is not connected with you.
- If you use your own name, keep the use honest, in line with section 35.
Need help with a name or generic-word problem?
If a registered mark is being used against your own name, or you fear your own brand word is slipping into common use, the details of use matter. Our legal consultation service lets you set out the facts and get a reading of sections 35 and 36 against them.
Key takeaways
- Section 35: no interference with bona fide use of one's own name, place of business, predecessors' names, or a bona fide description of goods or services.
- Section 36(1): later use of a mark's word as the name of an article does not by itself invalidate registration.
- The proviso: well-known and established use by others, or two years after a patent ceased with the word the only practicable name, brings sub-section (2) into play.
- Sub-section (2): registration may be treated as wrongly remaining on the register; rights in the word are deemed to cease from the stated date.
Read next
- Section 34: saving for vested rights of prior user
- Section 30: limits on effect of registered trade mark
- Section 29: infringement of registered trade marks
- Section 33: effect of acquiescence
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.