Companies
(Name Availability) Rules, 2011
In exercise of the power conferred by
clause (a) of sub-section (1) of section 642 read with sections 20 and 21 of
the Companies Act, 1956 (1 of 1956), the Central Government hereby makes the
following rules:
1(i) These
Rules may be called “Companies (Name Availability) Rules, 2011”;
(ii)
It shall come into force on such date as the Central Government
may, by notification in the Official Gazette, appoint.
2. As per provisions contained in Section
20 of the Companies Act, 1956, no company is to be registered with undesirable
name. A proposed name is considered to be undesirable if it is identical with
or too nearly resembling with:
(i)
Name
of a company in existence; or
(ii)
A registered trade-mark or a trade mark which is subject of an
application for registration, of any other person under the Trade Marks Act,
1999.
3. After notification of these Rules,
while applying for a name in the prescribed e-form-1A, using Digital Signature
Certificate (DSC), the applicant shall be required to furnish a declaration to
the effect that:
(i)
he has used the search facilities available on the portal of
the Ministry of Corporate Affairs (MCA) i.e., www.mca.gov.in/MCA21 for checking the
resemblance of the proposed name(s) with the companies and Limited Liability
Partnerships (LLPs) already registered or the names already approved.
(ii) the proposed name(s) is/are not infringing
the registered trademarks or a trademark which is subject of an application for
registration, of any other person under the Trade Marks Act, 1999;
(iii)
the proposed name(s) is/are not in violation of the provisions
of Emblems and Names (Prevention of Improper Use) Act, 1950 as amended from
time to time;
(iv)
The proposed name is not offensive to any section of people,
e.g., proposed name does not contain profanity or words or phrases that are
generally considered a slur against an ethnic group, religion, gender or
heredity;
(v) he has gone through all the prescribed
guidelines, given in these Rules, understood the meaning thereof and the
proposed name(s) is/are in conformity thereof;
(vi)
he undertakes to be fully responsible for the consequences, in
case the name is subsequently found to be in contravention of the prescribed
guidelines.
4.
Where, the proposed name is containing more than one word,
there will be an option in the e-form 1A for certification by the practicing
Chartered Accountants, Company Secretaries and Cost Accountants, who will
certify that he has used the search facilities available on the portal of the
Ministry of Corporate Affairs (MCA) i.e., www.mca.gov.in/MCA21
for checking the resemblance of the proposed name(s) with the companies and
Limited Liability Partnerships (LLPs) already registered or the names already
approved and the search report is attached with the application form. The
professional will also certify that the proposed name is not an undesirable
name under the provisions of section 20 of the Companies Act, 1956 and also is
in conformity with Companies (Name Availability) Rules, 2011 and Guidelines
made therein.
5(i). Where e-form 1A has been certified
by the professional in the manner stated at ‘4’ above, the name will be made
available by the system online to the applicant without backend processing by
the Registrar of Companies (ROC). This facility is not available for
applications for change of name of existing companies.
(ii)
Where a name has been made available online on the basis of
certification of practicing professional in the manner stated above, if it is
found later on that the name ought not to have been allowed under provisions of
section 20 of the Companies Act read with these Rules, the professional shall
also be liable for penal action under provisions of the Companies Act, 1956 in
addition to the penal action under Regulations of respective professional
Institutes.
(iii)
Where e-form 1A has not been certified by the professional, the
proposed name will be processed at the back end office of ROC and availability
or non availability of name will be communicated to the applicant.
6.
The name if made available, is liable to be withdrawn anytime
before registration of the company, if it is found later on that the name ought
not to have been allowed. However, ROC will pass an specific order giving
reasons for withdrawal of name, with an opportunity to the applicant of being heard,
before withdrawal of such name.
7.
The name if made available to the applicant, shall be reserved
for sixty days from the date of approval and further extension of thirty days
with revalidation application and fees. If, the proposed company has not been
incorporated within such period, the name shall be lapsed and will be available
for other applicants.
8.
Even after incorporation of the company, the Central Government
has the power to direct the company to change the name under section 22 of the
Companies Act, 1956, if it comes to his notice or is brought to his notice
through an application that the name too nearly resembles that of another
existing company or a registered trademark.
9. In
determining whether a proposed name is identical with another, the following
shall be disregarded:
(i)
The words Private, Pvt, Pvt., (P), Limited, Ltd, Ltd., LLP,
Limited Liability Partnership;
(ii)
The words appearing at the end of the names – company, and
company, co., co, corporation, corp, corpn, corp.;
(iii) The plural version of any of the words
appearing in the name;
(iv)
The type and case of letters, spacing between letters and
punctuation marks;
(v)
Joining words together or separating the words does not make a
name distinguishable from a name that uses the similar, separated or joined
words;
(vi)
The use of a different tense or number of the same word does
not distinguish one name from another;
(vii)
Using different phonetic spellings or spelling variations does
not distinguish one name from another. For example, J.K. Industries limited is
existing then J and K Industries or Jay Kay Industries or J n K Industries or J
& K Industries will not be allowed. Similarly if a name contains numeric
character like 3, resemblance shall be checked with ‘Three’ also;
(viii) Misspelled words, whether intentionally
misspelled or not, do not conflict with the similar, properly spelled words;
(ix)
The
addition of an internet related designation, such as .COM,
.NET,
.EDU, .GOV, .ORG, .IN does not make a name distinguishable from another, even
where (.) is written as ‘dot’;
(x)
The addition of words like New, Modern, Nav, Shri, Sri, Shree,
Sree, Om, Jai, Sai, The, etc. does not make a name distinguishable from an
existing name such as New Bata Shoe Company, Nav Bharat Electronic etc.
Similarly, if it is different from the name of the existing company only to the
extent of adding the name of the place, the same shall not be allowed. For
example, ‘Unique Marbles Delhi Limited’ can not be allowed if ‘Unique Marbles
Limited’ is already existing;
Such
names may be allowed only if no objection from the existing company by way of
Board resolution is produced/ submitted;
(xi)
Different combination of the same words does not make a name
distinguishable from an existing name, e.g., if there is a company in existence
by the name of “Builders and Contractors Limited”, the name “Contractors and
Builders Limited” should not be allowed;
(xii) If the proposed name is an exact Hindi
translation of the name of an existing company in English especially an
existing company with a reputation, e.g., Hindustan Steel Industries Ltd. will
not be allowed if there exists a company with name ‘Hindustan Ispat Udyog
Limited’;
10.
Guidelines for availability of name
In supercession of all the previous
circulars and instructions regarding name availability, the applicants and
Registrar of Companies are also advised to adhere following guidelines while
applying or approving the proposed name:
(i)
It is not necessary that the proposed name should be indicative
of the main object. However, in case the proposed name is indicative of any
activity, the same will be appropriately reflected in the main object clause of
the Memorandum of Association;
(ii)
If the Company’s main business is finance, housing finance,
chit fund, leasing, investments, securities or combination thereof, such name
shall not be allowed unless the name is indicative of such related financial
activities, viz., Chit Fund/ Investment/ Loan, etc.;
(iii)
If it includes the words indicative of a separate type of
business constitution or legal person or any connotation thereof, the same
shall not be allowed. For eg: co-operative, sehkari, trust, LLP, partnership,
society, proprietor, HUF, firm, Inc., PLC, GmbH, SA, PTE, Sdn, AG etc.;
(iv)
Abbreviated name such as ‘ABC limited’ or ‘23K limited’ cannot
be given to a new company. However the companies well known in their respective
field by abbreviated names are allowed to change their names to abbreviation of
their existing name (for Delhi Cloth Mills limited to DCM Limited, Hindustan
Machine Tools limited to HMT limited) after following the requirement of
Section 21 of the Companies Act, 1956;
(v)
If the proposed name is identical to the name of a company
dissolved as a result of liquidation proceeding should not be allowed for a
period of 2 years from the date of such dissolution since the dissolution of
the company could be declared void within the period aforesaid by an order of
the Court under section 559 of the Act. Moreover, if the proposed name is
identical with the name of a company which is struck off in pursuance of action
under section 560 of the Act, then the same shall not be allowed before the
expiry of 20 years from the publication in the Official Gazette being so struck
off since the company can be restored anytime within such period by the
competent authority;
(vi)
If the proposed names include words such as ‘Insurance’,
‘Bank’, ‘Stock Exchange’, ‘Venture Capital’, ‘Asset Management’, ‘Nidhi’,
‘Mutual fund’ etc., the name may be allowed with a declaration by the applicant
that the requirements mandated by the respective regulator, such as IRDA, RBI,
SEBI, MCA etc. have been complied with by the applicant;
(vii) If the proposed name includes the word
“State”, the same shall be allowed only in case the company is a government
company. Also, if the proposed name is containing only the name of a continent,
country, state, city such as Asia limited, Germany Limited, Haryana Limited,
Mysore Limited, the same shall not be allowed;
(viii)
If a foreign company is incorporating its subsidiary company,
then the original name of the holding company as it is may be allowed with the
addition of word India or name of any Indian state or city, if otherwise
available;
(ix)
Change of name shall not be allowed to a company which is
defaulting in filing its due Annual Returns or Balance Sheets or which has
defaulted in repayment of matured deposits and debentures and/or interest
thereon;
(x)
With a view to maintain uniformity, the following guidelines
may be followed in the use of keywords, as part of name, while making available
the proposed names under section 20 and 21 of the Companies Act, 1956:
S.No
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Key Words
|
Required
|
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authorized
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capital (in Rs.)
|
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1
|
Corporation, corp, corpn, corp.
|
25 crore
|
||
2
|
international,
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Globe, Global,
World,
|
5 crore
|
|
Overseas,
Universe, Universal,
|
Continent,
|
|||
Continental,
InterContinental, Asiatic, Asia,
|
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Asian
being the first word of the name
|
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3
|
If any of the words at (2) above is used
|
2 crore
|
||
within
the name (with or without brackets)
|
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4
|
Hindustan, India, Indo,
Indian, Bharat,
|
2 crore
|
||
Bharatvarsh,
Bhartiya or any
other
|
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country’s name
being first word
of the
|
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name
|
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5
|
If any of the words at (4) above is used
|
25 lakh
|
||
within
the name (with or without brackets)
|
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6
|
Industries/ Udyog
|
5 crore
|
||
7
|
Enterprises,
|
Products,
|
Business,
|
50 lakh
|
Manufacturing,
Venture.
Regards, Arti Sharma CS Student |
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