Can Two Companies Have the Same Trademark in India? The Complete Legal Answer (2026)
It is one of the most common questions in Indian trademark law — and one of the most misunderstood. The general principle is clear: two companies cannot register the same or confusingly similar trademark for the same or similar goods or services. However, Indian trademark law contains important exceptions, nuances, and specific circumstances under which two different entities can legally use or even register an identical or similar mark. Understanding these exceptions is critical for every business — whether you are trying to protect your brand, responding to a trademark objection, or dealing with a situation where your competitor appears to be using a mark similar to yours.
This guide by DisyTax provides a complete, legally accurate answer to the question — backed by the exact text of the Trade Marks Act, 1999 and key judicial precedents from Indian courts. For foundational knowledge, also read our guides on what is a trademark in India, trademark infringement in India, and trademark rejection reasons.
✅
YES — In Limited Cases
Two companies can legally use or register the same trademark in India under specific circumstances — different trademark classes, honest concurrent use (Section 12), or geographical separation with no consumer confusion.
Section 12 — Honest Concurrent Use
Different Classes
Geographic Separation
❌
NO — In Most Cases
Two companies generally cannot register the same or similar trademark for the same or similar goods/services. Section 11 prohibits it, and prior use or registration creates enforceable exclusive rights.
Section 11 — Absolute Bar
Same Class = Infringement
Well-Known Marks = Always Barred
📋 Quick Summary: Can Two Companies Have the Same Trademark in India?
- General Rule (Section 11): No — identical or similar marks for same/similar goods or services cannot both be registered. The later applicant faces absolute rejection.
- Exception 1 — Different Classes: Yes — the same trademark can be registered by different owners in different trademark classes if there is no likelihood of consumer confusion.
- Exception 2 — Honest Concurrent Use (Section 12): Yes — if both parties have been independently and honestly using the same mark for a considerable period, the Registrar has discretion to allow both registrations.
- Exception 3 — Consent of Prior Owner: Yes — if the existing trademark owner provides written consent, the Registrar may register a similar mark under special circumstances.
- Well-Known Trademarks: Absolute bar — no exceptions. Even in different classes, no one can register a mark identical/similar to a well-known trademark.
- Passing Off: Even without registration, prior unregistered users can sue for passing off under common law — protecting long-used marks regardless of registration status.
- Delhi HC Ruling (2022): Both validly registered proprietors of the same mark can use their trademark against third parties but cannot assert rights against each other.
1. The General Rule: Section 11 of the Trade Marks Act, 1999
The Trade Marks Act, 1999 lays down a clear general rule: a trademark that is identical or confusingly similar to an already registered trademark (or a pending earlier application) for the same or similar goods or services shall not be registered. This is codified in Section 11 of the Act, which creates absolute and relative grounds for refusal of trademark registration. The purpose of this rule is straightforward — a trademark's fundamental function is to act as a source identifier, telling consumers exactly which company's goods or services they are buying. If two companies use the same mark for the same products, this function completely breaks down.
Trade Marks Act, 1999 — Section 11 (Relative Grounds for Refusal)
"Save as provided in section 12, a trade mark shall not be registered if, because of — (a) its identity with an earlier trade mark and similarity of goods or services covered by the trade mark; or (b) its similarity to an earlier trade mark and the identity or similarity of the goods or services covered by the trade mark, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark."
— Trade Marks Act, 1999, Section 11(1)
Plain Explanation: If Company A already has a trademark registered for, say, "packaged food products" in Class 30, Company B cannot register the same or a confusingly similar mark for the same class. The Registrar will raise an objection under Section 11(1)(a) or 11(1)(b) — and this objection, unless overcome, leads to rejection of the application. The phrase "Save as provided in section 12" is the critical carve-out — it means Section 11's prohibition does not apply in the honest concurrent use scenario covered by Section 12.
2. The Key Exception: Section 12 — Honest Concurrent Use
Section 12 of the Trade Marks Act, 1999 is the most important exception to the general prohibition in Section 11. It is titled "Registration in the case of honest concurrent use, etc." and it explicitly allows the Registrar of Trade Marks to permit registration by more than one proprietor of identical or similar trademarks — even for the same or similar goods or services — in certain specific circumstances. This provision exists to protect businesses that have been genuinely and independently using the same mark in good faith, often without knowledge of each other's existence, typically in different geographic regions.
Trade Marks Act, 1999 — Section 12 (Honest Concurrent Use)
"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."
— Trade Marks Act, 1999, Section 12
Plain Explanation: This section gives the Registrar discretionary power — not an obligation — to allow two companies to co-exist with the same or similar trademark. The key trigger is "honest concurrent use" — both parties must have been using the mark genuinely, independently, and without intent to free-ride on the other's goodwill. The Registrar may impose conditions (e.g., geographic limitations, specific product categories, disclaimer requirements) when granting concurrent registration. This provision overrides Section 11's general prohibition.
What Must Be Proved for Honest Concurrent Use
Claiming honest concurrent use is not automatic — it requires substantial documentary evidence. Indian courts and the Trademark Registry apply a five-factor test, derived from the landmark case Kores (India) Ltd. v. Khoday Eshwarsa and Son, to determine whether Section 12 protection is available.
1
Honesty of Concurrent Use
The applicant must demonstrate they adopted the mark independently and in good faith — without knowledge of the prior registrant's mark and without any intent to benefit from the other's goodwill or reputation.
2
Duration, Area & Volume of Trade
Evidence of how long, in which geographic regions, and in what volume of trade the mark has been in use. Bills, invoices, sales records, transportation documents, and advertisement proofs are required.
3
Degree of Confusion Likely
An assessment of how likely consumers are to confuse the two marks. The more similar the marks and the more similar the goods/services, the higher the confusion risk — and the harder it is to get concurrent registration.
4
Actual Instances of Confusion
Whether any actual instances of consumer confusion have been reported or proven. If no real-world confusion has occurred despite years of co-existence, this strongly supports the concurrent use claim.
5
Relative Inconvenience to Parties & Public
A balancing exercise — what is the relative harm to each party and to the public if the mark is or is not registered? If one party has built substantial goodwill, forced rebranding would cause significant commercial harm.
📄 Documentary Evidence Required for Section 12 Claim
To successfully invoke Section 12, the following evidence must be submitted to the Trademark Registry:
- Sales invoices showing continuous use of the mark (with dates — the earlier the better)
- Advertisements, brochures, hoardings, and digital marketing materials featuring the mark
- Annual sales figures and books of accounts under the mark for each year of use
- Affidavit by the proprietor confirming independent adoption of the mark in good faith
- Evidence of geographic territory where the mark is used
- Any certificates, licenses, or registrations using the brand name
3. When Two Companies CAN Legally Have the Same Trademark
| Scenario |
Legally Permitted? |
Legal Basis |
Key Condition |
| Same mark, completely different trademark classes |
YES |
Section 11 — no likelihood of confusion across unrelated classes |
No consumer confusion; no well-known mark involved |
| Honest Concurrent Use — both using independently for years |
POSSIBLE |
Section 12 — Registrar's discretion |
Must prove honest, long-term, independent use with no actual confusion |
| Prior owner gives written consent |
YES |
Section 12 "special circumstances" |
Consent must be unconditional and submitted to Registry |
| Geographic separation — no market overlap |
POSSIBLE |
Section 12 with territorial conditions imposed by Registrar |
Each party restricted to operating in their respective geographic territory |
| Same mark, same class — no prior registration exists |
YES (first to file wins) |
Section 18 — first in time, first in right |
First to file gets registered; second applicant must change their mark |
| Same mark, same class — both are registered (Delhi HC 2022) |
LIMITED |
Both can use against third parties; cannot assert against each other |
Neither can sue the other for infringement — rights are mutual but limited |
| Same mark, same class — one registered, one well-known |
NO |
Section 11(2) — well-known marks absolute bar |
No exception; Section 12 explicitly cannot be invoked for well-known marks |
| Same mark as a well-known trademark — any class |
NO |
Section 11(2) — cross-class protection for well-known marks |
Absolute prohibition across all classes — no honest concurrent use defense |
4. Key Judicial Precedents: What Indian Courts Have Ruled
Indian courts — particularly the Delhi High Court, Bombay High Court, and the Intellectual Property Appellate Board (IPAB) — have interpreted Section 12 and the concept of honest concurrent use in numerous landmark judgments. These rulings provide important guidance on how the law operates in practice.
Delhi High Court — 2022 (Concurrent Registration Ruling)
Delhi High Court | Trademark Concurrent Use
Held: Concurrent registration of the same or similar trademark by two or more persons is not per se barred under Indian law. Both validly registered proprietors can use their trademark to assert exclusivity against third parties. However, neither registered proprietor can assert trademark rights against the other registered proprietor — their rights are mutual but do not extinguish each other.
Kores (India) Ltd. v. Khoday Eshwarsa and Son
Supreme Court of India | Landmark Section 12 Case
Held: Established the five-factor test for honest concurrent use — honesty of use, duration/area/volume of trade, degree of confusion, actual instances of confusion, and relative inconvenience to parties and public. All five factors must be weighed together; no single factor is determinative.
Amritdhara Pharmacy v. Satya Deo Gupta
Supreme Court of India | Confusion Test
Held: The test for likelihood of confusion is whether an ordinary person of average intelligence, with imperfect recollection, is likely to be confused by the two marks. The marks must be viewed as a whole — not element by element. Concurrent use is harder to justify when the consumer base is less literate or sophisticated.
Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd.
Supreme Court of India | Pharmaceutical Trademarks
Held: In cases involving pharmaceutical products, the courts apply a stricter standard for concurrent use — the risk of confusion can have life-threatening consequences. Concurrent registration for similar drug names was not permitted even where some geographic separation existed.
5. The "Different Classes" Exception Explained
India follows the Nice Classification system — 45 trademark classes covering different categories of goods (Classes 1–34) and services (Classes 35–45). The same brand name can potentially be registered by different entities in completely different, unrelated classes. For example, "Atlas" as a brand name is registered by different companies in India for bicycles (Class 12), stationery (Class 16), and financial services (Class 36) — these are sufficiently different that consumer confusion is unlikely.
⚠️ Important Caveat: Related Classes Are NOT "Different Enough"
The different-classes exception only works when the classes are genuinely unrelated and there is no realistic possibility of consumer confusion. Registering the same name in Class 25 (clothing) and Class 18 (bags and leather goods) would likely face an objection because these are complementary goods often sold together by the same brands. The test is always "likelihood of confusion" — not merely whether the class numbers are different. Also, for well-known trademarks (like Tata, Amul, Google, Apple), the cross-class protection applies absolutely — no one can register similar marks even in unrelated classes.
6. Passing Off: Protection Even Without Registration
A critical aspect of this question is that trademark rights in India do not depend solely on registration. Section 27(2) of the Trade Marks Act, 1999 and the common law action of "passing off" protect prior unregistered users of a trademark. If Company A has been using a brand name for years without registration, and Company B later registers the same mark, Company A can file a passing off action in court to stop Company B from using the mark — and even get Company B's registration cancelled.
Trade Marks Act, 1999 — Section 27(2) (Passing Off Rights)
"Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods or services of another person or the remedies in respect thereof."
— Trade Marks Act, 1999, Section 27(2)
Plain Explanation: Even if you do not have a registered trademark, you have legal protection against others passing off their goods as yours — if you have established goodwill and reputation in the market. A business using a brand name for 10 years without registration can successfully sue a competitor who later registers the same mark, provided the older user can prove: (1) goodwill/reputation in the mark, (2) misrepresentation by the later user, and (3) actual or likely damage to goodwill. This is why trademark registration — and early registration — is so important. See our guide on
trademark registration in India for the complete process.
7. What to Do If a Competitor Has a Similar Trademark
If you discover that a competitor is using a trademark identical or similar to yours — whether registered or unregistered — you have several legal options depending on your situation. The correct course of action depends on whether your trademark is registered, how long you have been using it, whether the competitor's mark is registered, and the similarity of your goods or services.
A
File a Trademark Opposition
If the competitor's application is in the 4-month journal publication period, file a Notice of Opposition (Form TM-O) with the Trademark Registry to prevent registration. Deadline: 4 months from journal publication date.
B
File a Cancellation Petition
If the competitor's trademark is already registered, file a rectification/cancellation petition (Form TM-O) with the Trademark Registry or High Court under Section 57 of the Act, seeking removal of the mark from the register.
C
Sue for Trademark Infringement
If you have a registered trademark and the competitor is using the same/similar mark for same/similar goods, file a trademark infringement suit in the District Court or High Court under Section 29. Seek injunction + damages.
D
Sue for Passing Off
Even without a registered trademark, if you have established goodwill and the competitor is misrepresenting their goods as yours, file a passing off action. Available to both registered and unregistered trademark owners under Section 27(2).
E
Send a Cease and Desist Notice
Before court action, send a legal cease and desist notice through a trademark attorney. Many disputes are resolved at this stage without costly litigation — faster and far less expensive than court proceedings.
F
Register Your Trademark NOW
If you are not yet registered, file your trademark application immediately. This establishes your priority date and strengthens all the above legal actions significantly. Use DisyTax trademark registration for same-day filing.
🚨 Critical Warning: Do Not Delay Registration
In Indian trademark law, the first to use the mark in commerce has priority — but the first to register gets a legal presumption of ownership and dramatically easier enforcement. If a competitor registers a similar mark before you, even if you have been using it longer, you will need to go through expensive and time-consuming cancellation proceedings to assert your rights. The cost of trademark registration (₹4,500–₹9,000 per class) is a fraction of the cost of a single trademark dispute (₹50,000 to several lakhs). Register early, register completely.
8. Frequently Asked Questions
Can two companies register the same brand name in different trademark classes in India? +
Yes — the same brand name can be registered by different entities in completely different trademark classes, provided there is no likelihood of consumer confusion between the two companies' goods or services. India follows the Nice Classification system (45 classes). If the classes are genuinely unrelated (e.g., "Atlas" bicycles in Class 12 and "Atlas" stationery in Class 16), co-existence is legally permissible. However, for well-known trademarks, this exception does not apply — their protection extends across all 45 classes regardless of the goods or services involved.
What is "honest concurrent use" of a trademark under Indian law? +
Honest concurrent use is the doctrine codified in Section 12 of the Trade Marks Act, 1999, which allows the Trademark Registrar to permit two different entities to register the same or similar trademark when both have been independently and genuinely using the mark for a considerable period — often without knowledge of each other's existence. It typically arises when two businesses in different geographic regions independently adopt the same mark and build distinct market goodwill. The applicant must prove honesty of adoption, duration and extent of use, absence of actual consumer confusion, and the relative inconvenience of forcing either party to rebrand.
If a competitor has registered a trademark identical to mine, can I still use my brand name? +
It depends on several factors. If you have been using the brand name for a longer period than the competitor (prior use), you may have grounds to challenge the competitor's registration through a cancellation petition under Section 57 of the Trade Marks Act, 1999, and simultaneously assert passing off rights under Section 27(2). If the competitor's registration is in a completely different trademark class with no market overlap, continued use may be permissible. However, using a registered trademark without authorization for the same goods or services exposes you to an infringement lawsuit. Consult a trademark attorney immediately and file your own trademark application without delay to establish your priority date.
Can the same person or company register the same trademark in multiple classes? +
Yes — the same entity can register the same trademark across multiple trademark classes to protect their brand across different product and service categories. This is a common and recommended practice for growing businesses. Each class requires a separate trademark application and a separate government filing fee (₹4,500–₹9,000 per class). Large companies like Tata, Reliance, and Amul typically register their trademarks across 10–30 classes to prevent competitors from using their brand name in any category. See our guide on
trademark classes in India for the complete list of all 45 classes.
What happens when two companies have the same registered trademark? Can they sue each other? +
In a landmark 2022 judgment, the Delhi High Court held that concurrent registration of the same or similar trademark by two or more entities is not per se barred under Indian law. Where both registrations are validly subsisting, both proprietors can use their trademark to assert exclusivity against third parties — but neither can assert trademark infringement rights against the other registered proprietor. In practice, this means both companies operate in a state of mutual coexistence — neither can stop the other from using the mark, but both can stop outsiders from using it. This is why it is important to monitor and oppose conflicting trademark applications during the 4-month journal publication period, before they reach the registration stage.
Can I use a trademark that is similar to a well-known Indian trademark? +
No — using or registering a trademark similar to a well-known trademark is prohibited across all 45 trademark classes under Section 11(2) of the Trade Marks Act, 1999. Well-known trademarks (such as Tata, Amul, Bajaj, Infosys, and internationally recognized marks like Google, Apple, and Amazon) receive cross-class protection. Even if your goods or services are completely unrelated to the well-known mark's primary business, you cannot register or use a similar mark. The honest concurrent use defense under Section 12 is also explicitly unavailable for well-known trademarks. The list of well-known trademarks is maintained on the IP India website and updated periodically.
My trademark application was rejected because of a similar existing mark. What should I do? +
A trademark examination report citing an existing similar mark (under Section 11) does not mean your application is permanently rejected. You have several options: (1) File a detailed Reply to Examination Report within 30 days, arguing why the marks are sufficiently different or why there is no likelihood of confusion; (2) Invoke Section 12 honest concurrent use if you have substantial evidence of long-term prior use; (3) Obtain the prior mark owner's consent letter and submit it with your reply; (4) Attend a Hearing before the Trademark Examiner to present your case in person. DisyTax handles examination report replies for clients — see our
trademark objection reply service for expert assistance.
🛡️ Protect Your Brand Before Someone Else Does
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