The Trade Marks Act, 1999 permits an applicant to seek registration of a mark on a “proposed to be used” basis. Unlike use-based jurisdictions, Indian law does not require prior commercial use as a precondition to filing. At first glance, this appears to be a powerful commercial tool. It allows businesses to secure trademark rights even before entering the market. Yet what is often treated as a routine filing option carries both strategic advantages and significant risks.

The question is not whether a “proposed to be used” (PTBU) filing is permissible — the statute clearly allows it. The real question is whether it is being used wisely.

The Advantage: Securing Priority Before the Market Moves

The primary strength of a PTBU filing lies in timing. Brand development frequently precedes commercial launch. Manufacturing arrangements, funding cycles, regulatory approvals and marketing strategies require time. A PTBU trademark application enables an applicant to secure a filing date while these processes are underway.

In competitive industries like fashion, technology, FMCG, early priority can be decisive. It prevents competitors from pre-emptively adopting or registering identical or similar marks. For start-ups in particular, PTBU filings serve as a protective shield, allowing brand reservation before significant investment or public disclosure. When supported by a genuine commercial roadmap, PTBU filing is neither speculative nor improper. It is a legitimate strategic safeguard. However, the advantage of early filing is meaningful only if it transitions into actual use.

The Disadvantage: Registration Without Use Is a Fragile Right

The difficulty arises when registration is mistaken for market presence. A PTBU registration, though validly obtained, does not automatically translate into enforcement strength. Trademark law is ultimately grounded in use. Goodwill is not presumed; it is built.

Section 18 presupposes a bona fide intention to use the mark. This declaration is not ornamental. It reflects a substantive expectation that the applicant intends to deploy the mark in trade. Courts have consistently discouraged warehousing or speculative accumulation of marks. A trademark is a badge of origin of goods/ services, not a commodity to be stockpiled.

More significantly, Section 47 renders a registered  mark vulnerable to removal if it is not used for a continuous period of five years and three months. Businesses that file defensively but fail to commercialise often overlook this statutory clock. A registration may survive on paper, yet remain structurally exposed.

In opposition and infringement proceedings, the absence of use becomes even more pronounced. Courts examine commercial reality — sales figures, advertising expenditure, consumer recognition and market penetration. A proprietor relying solely on registration, without evidence of use, may face difficulty in securing interim relief. Trademark enforcement draws persuasive strength from established goodwill. A dormant registration carries statutory weight, but limited equitable force.

It is often argued in opposition proceedings that refusal of a PTBU application causes no prejudice since no commercial use has commenced. This does not imply bad faith. An applicant may well be a bona fide adopter. Yet trademark law prioritises existing goodwill and likelihood of confusion over proposed intention. Even an honest adopter may face refusal where statutory bars are attracted. The absence of use does not suggest dishonesty, but it does signify the absence of accrued market recognition.

When PTBU Backfires

The strategic risk intensifies where PTBU filings are made without demonstrable intention to use. Overbroad filings across multiple classes, unsupported by concrete business plans, may invite opposition and allegations of bad faith. The declaration of “proposed to be used” creates an evidentiary expectation. If challenged, the applicant may be required to demonstrate that the intention to use was genuine at the time of filing.

In litigation, a party seeking injunction without having commenced use risks appearing speculative rather than protective. Settlement leverage may also weaken in the absence of demonstrable commercial activity. PTBU filing is not inherently problematic, its misuse is.

The Strategic Balance

“Proposed to be used” is neither a shortcut to monopoly nor an inherently weak filing category. It is a strategic instrument. Used thoughtfully, it secures priority, deters brand hijacking and aligns with commercial expansion. Used casually, it results in dormant registrations, vulnerability under Section 47 and diminished enforcement credibility. Trademark law ultimately rewards those who build brands, not those who merely reserve them. The true strength of a mark does not lie in the words “proposed to be used” but in the transition from proposal to actual market presence.

Written By
Alice Bibiana