Introduction

Last week, even before an announcement was made, the Trump Organization filed two trademark applications, one for TRUMP and another for “T1”in respect of mobile phones and wireless services.1 While people are busy speculating, the President’s next business venture, the current scenario serves as a classic textbook example of a smart brand strategy, i.e., file first and then launch.

Filing a trademark in today’s world is not a luxury for brands, it has become a necessity. Today, trademarks are not just about securing your brand name, it is about setting the groundwork for building a long-standing brand value, safeguarding your goodwill, and deterring imitators.

Yet amid all this awareness, one question that continues to resurface is when one should apply for trademarks? Is it before launch or after?

Trademark Landscape in India

While India finds itself in the middle of a market boom, every day, a new product and brand name make it to the shelves of stores and supermarkets. This growth has also been backed by the surge seen in the IP filings. According to the IP Annual Report [2023-2024] the IP Offices have received 476089 trademark applications and have witnessed a growth of 355.49% from 2014-2023.2

Why Early Filing Matters?

The Indian Trademark law allows Applicants to file a Trademark Application on a “proposed to be used basis” i.e., application filed on the basis of future use. This benefits businesses as it allows them to:

  1. Offer Strategic Clarity: Filing a Trademark Application before launching on a proposed-to-be-used basis (that is filing before commencing use) is not just about securing rights, it provides strategic clarity. Once an application is filed, the Trademark Registry issues an Examination Report, which helps assess the registrability of the chosen mark. If no objection is raised, then it indicates that the mark is unlikely to face any legal consequences/objections by third parties.

  2. Expansion of Brand Portfolio: By filing an application on Proposed to be used basis, many businesses especially start-ups and consumer facing companies can expand their brand portfolio. For instance, a brand can file trademark applications for ten marks and only five may be used immediately. While not all may reach the market, each registration builds a broader IP Portfolio significantly, thereby enhancing the overall IP Valuation.

Whirlpool Case of Early Filing

Filing Trademarks on a proposed-to-be-used basis is not a new case in India, the landmark case of N.R. Dongre & Ors. v. Whirlpool Corporation & Ors., [Appeal (civil) 10703 of 1996], Whirlpool entered India in the late 1980s, however even before entering the market it had registered its trademark on a proposed to be used basis.

In this case, Whirlpool Corporation had failed to renew its registration in India, and during this period, N.R. Dongre & Others obtained registration for the mark “Whirlpool.” Despite not having a current Indian registration, Whirlpool Corp. had been consistently advertising its products in international media accessible in India. The Hon’ble Delhi High Court both at the Single Judge and Division Bench levels granted a temporary injunction in Whirlpool’s favour on the ground that the mark had acquired significant transborder reputation. Aggrieved by the decision N.R. Dongre filed an appeal against the injunction order.

The Hon’ble Supreme Court upheld these findings, affirming that even without registration or local use, a brand can seek protection through the common law remedy of passing off, provided it has built reputation and goodwill among Indian consumers.

Other Examples of Brands that have Filed Application on a Proposed-to-Be-Used Basis

  1. TESLA – Elon Musk's Tesla, has been eyeing the Indian Market for a very long time, and according to reports is expecting to enter the Indian Market with retail showrooms soon. The company Tesla Inc., has however obtained Trademark Protection in India for several formative marks in India on a proposed to be used basis.

    Tesla Inc., has obtained Trademark Registration for its mark under class 42 in 2016 on a proposed to be used basis

  2. ARKS – The Brand “ARKS”, a premium lifestyle brand founded by Ranbir Kapoor, was launched in February 2025. However, the brand filed a Trademark Application in 2020 on a proposed to be used basis.

  3. In a similar manner, the Apple iPhone was launched in India in August 2008, however, the earliest trademark application filed by Apple Inc., for iPhone was in the year 2002 on a proposed to be used basis.

  4. IKEA: IKEA officially entered India in 2018, but it had filed several trademark applications in India on a proposed to be used basis. An example of one such application has been pasted below.

  5. SKIMS: The brand SKIMS run by celebrity-influencer Kim Kardashian has secured trademark registration for its brand SKIMS in India even before entering the market.

Post-Registration Best Practice for Proposed to be Used Basis

  1. Start Using the Mark in Commerce: Begin using the mark on products, packaging, websites, labels, social media, or marketing campaigns.

  2. Maintain Proof of Use: Preserve dated invoices, brochures, advertisements, product photos, social media posts, and promotional emails. These will be crucial in case of enforcement, opposition, or cancellation actions.

  3. Removal of mark on the grounds of non- use- Ensure the mark is used within 5 years from the date it was entered in the Register to avoid the possibility of removal of trademark on the ground of non-use under Section 47 of the Trademarks Act.

    A recent example that reinforces the importance of actual and continuous use of a trademark is the case of Kiranakart Technologies Pvt. Ltd. v. Mohammad Arshad & Anr. [C.O. (COMM.IPD-TM) 50/2022]. In this matter, the Respondent had obtained registration for the mark ZEPTO in Class 35 back in 2014, claiming use since 2011. However, he failed to produce any evidence demonstrating actual commercial use of the mark.

    Moreover, when Kiranakart Technologies applied to register the mark “ZEPTO” in 2021, the Respondent opposed the application, despite not having actively used the trademark in commerce. Kiranakart subsequently initiated a rectification petition under Sections 47 and 57 of the Trade Marks Act, 1999, seeking removal of the earlier registration on grounds of non-use.

    Since the Respondent failed to appear or contest the proceedings, the Court, relying on precedents such as DORCO Co. Ltd. v. Durga Enterprises and Russell Corp Australia Pty Ltd. v. Shri Ashok Mahajan, held in favour of Kiranakart.

    The Hon’ble Court observed that when allegations of non-use are not rebutted, they may be taken as admitted. Consequently, the registration held by the Respondent was liable to be removed from the register.

Conclusion

In an era where brands are launched overnight and ideas spread faster than ever, waiting to file a trademark is no longer a calculated risk it is a liability. Whether you are a startup laying its foundation or an established business expanding into new verticals, securing your brand name through timely trademark filing is one of the simplest yet most strategic steps you can take.

Filing on a “proposed to be used” basis empowers you to reserve rights even before your product hits the market. It gives you legal priority, a head start against imitators, and clarity from the Registry on whether your chosen identity is viable. More importantly, it allows you to build your brand with confidence knowing that the name you are investing in is legally protected.

So, when should you file a trademark? The answer remains simple: the moment your brand has a name, it has a future worth protecting.

______________________________________________________________________________________________

1 https://www.bbc.com/news/articles/cjrld3erq4eo
2 https://ipindia.gov.in/writereaddata/Portal/Images/pdf/Annual_report_23-24_En.pdf