Section 46 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 46 protects an applicant who does not use, and does not propose to use, the mark personally. If a company is about to be formed and the applicant means to assign the mark to it, or if the proprietor means a registered user to use the mark after registration, the application cannot be refused or held back on the sole ground of non-use by the applicant. The section also sets guard-rails, including a time limit for the company to be registered as proprietor.
No application shall be refused on the ground only that the applicant does not use or propose to use the mark, if the Registrar is satisfied that (a) a company is about to be formed and registered and the applicant intends to assign the mark to it, or (b) the proprietor intends it to be used by a registered user after registration. The Registrar or the High Court may require security for costs of opposition or appeal. If the applicant relies on assignment to a company, the company must be registered as proprietor within the prescribed period, plus an extension of not more than six months, or the registration ceases to have effect for those goods or services.
Why the section exists
Section 18 lets a person apply to register a mark used or proposed to be used. Section 46 deals with the applicant who will not be the user. Founders often want to lock down a brand name before incorporation, and a holding entity often wants to register a mark that a licensee will use. Without section 46, non-use by the applicant could be a reason for refusal; with it, the Registrar must be satisfied of one of two stated intentions. See Section 18: application for registration.
Sub-section (1): the two cases
| Clause | What the Registrar must be satisfied about |
|---|---|
| (a) | A company is about to be formed and registered under the Companies Act, 1956, and the applicant intends to assign the trade mark to that company with a view to the company using it for those goods or services |
| (b) | The proprietor intends the mark to be used by a person as a registered user after the registration |
The word "only" matters. The application cannot be refused or permission withheld on the ground only that it appears the applicant does not use or propose to use the mark. Other grounds, such as those in sections 9 and 11, remain open to the Registrar. The section names the Companies Act, 1956, and the Trade Marks Act has not been amended to refer to the Companies Act, 2013 that replaced it; in practice a company formed and registered under the current Companies Act is what the clause is aimed at.
If you plan to start a business through a new company, our trademark registration service can prepare an application that states the intention clearly, so the Registrar can be satisfied under this section.
Sub-section (2): the link to non-use removal
Section 47 allows removal of a mark for non-use. Sub-section (2) of section 46 adjusts that: in relation to a mark registered under this section, the reference in section 47(1)(a) to the applicant's intention that the mark should be used by him is read as a reference to the intention that it should be used by the company or registered user concerned. So the non-use test follows the person who was meant to use the mark. See Section 47: removal for non-use.
Sub-section (3): security for costs
In a case to which sub-section (1) applies, the tribunal may require the applicant to give security for the costs of any proceedings relating to any opposition or appeal. If the applicant does not give the security as required, the tribunal may treat the application as abandoned.
Before the Tribunals Reforms Act, 2021 this read "tribunal". After the 2021 amendment it reads "the Registrar or the High Court, as the case may be". The practical result is that either the Registrar (during opposition) or the High Court (in an appeal) may call for security. The Act does not give an amount; that is left to the authority concerned.
Sub-section (4): the company must be registered in time
This is the sub-section that catches the unwary. Where the mark has been registered in the name of an applicant relying on an intention to assign it to a company, the company must be registered as the proprietor of the mark for those goods or services:
- within the period that may be prescribed, or
- within a further period, not exceeding six months, which the Registrar may allow on an application made in the prescribed manner.
If this does not happen, "the registration shall cease to have effect in respect thereof at the expiration of that period and the Registrar shall amend the register accordingly".
The Trade Marks Rules, 2017 as notified fix the period in rule 85. It is six months from the date of advertisement in the Journal of the registration of the trade mark, or such further period not exceeding six months as the Registrar may allow on an application in Form TM-P. The title is registered on an application under rule 75, which is the route described in Section 45. Check the current Rules for the period and form, as they can be amended.
Example. Priya and Arjun are about to incorporate "Neelkanth Organics Pvt Ltd". Before incorporation, Priya applies in her own name for "Neelkanth", stating that the mark will be assigned to the company. The mark is registered and advertised in the Journal. If the company is incorporated but no application to register it as proprietor is made within the period, the registration ceases to have effect for those goods. If incorporation is delayed, Priya can apply for the permitted extension, which cannot exceed six months.
Clause (b): the registered user case
Clause (b) deals with the proprietor who intends that a registered user will use the mark after registration. The sub-section does not give a time limit in the way sub-section (4) does for the company case. Registered users are dealt with in sections 48 to 54; see Section 48. Our guide to trademark licensing and registered user agreements explains the commercial side.
Practical points
- Say which clause you rely on in the application and keep proof of the intention, such as the incorporation plan or the draft licence.
- Diary the period under sub-section (4) from the date of advertisement of registration.
- Register the company as proprietor promptly, by an application for title under section 45.
- Be ready for security for costs if the application is opposed.
- Do not rely on section 46 for other grounds. It only answers the objection of non-use by the applicant.
Need help registering a mark before incorporation?
If you are planning a new company or a licensing structure, getting the application and the assignment timeline right avoids losing the registration later. Our trademark registration team can plan the filing, track the sub-section (4) period and complete the title registration.
Key takeaways
- Section 46 prevents refusal solely because the applicant does not use or propose to use the mark, where a company is about to be formed or a registered user will use it.
- The Registrar must be satisfied of the stated intention.
- The tribunal, now the Registrar or the High Court as the case may be, may require security for costs of opposition or appeal.
- Under sub-section (2), the section 47 non-use test looks to the company or registered user.
- Under sub-section (4), if the company is not registered as proprietor in time, the registration ceases to have effect for those goods or services.
- The extension the Registrar may allow cannot exceed six months.
Read next
- Section 45: registration of assignments and transmissions
- Section 47: removal from the register for non-use
- Section 48: registered users
- How to register a trademark in India
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.