Chapter V - Assignment and Transmission
Section 41
Section 41: Territorial divisions of exclusive rights
A transfer dividing exclusive use of identical or nearly resembling marks between different parts of India is restricted by this provision.
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Need advice on Section 41?
This article is for general information. Refer to the Trade Marks Act, 1999 official text for the official provisions. If you need professional advice for your situation, contact Bizeneed.
Statutory text
Bare law
Notwithstanding anything in sections 38 and 39, a trade mark shall not be assignable or transmissible in a case in which as a result of the assignment or transmission there would in the circumstances subsist, whether under this Act or any other law—
(a) an exclusive right in one of the persons concerned, to the use of the trade mark limited to use in relation to goods to be sold or otherwise traded in, in any place in India, or in relation to services for use, or services available for acceptance in any place in India; and
(b) an exclusive right in another of these persons concerned, to the use of a trade mark nearly resembling the first-mentioned trade mark or of an identical trade mark in relation to—
(i) the same goods or services; or
(ii) the same description of goods or services; or
(iii) services which are associated with those goods or goods of that description or goods which are associated with those services or services of that description, limited to use in relation to goods to be sold or otherwise traded in, or services for use, or available for acceptance, in any other place in India:
Provided that in any such case, on application in the prescribed manner by the proprietor of a trade mark who proposes to assign it, or by a person who claims that a registered trade mark has been transmitted to him or to a predecessor in title of his since the commencement of this Act, the Registrar, if he is satisfied that in all the circumstances the use of the trade mark in exercise of the said rights would not be contrary to the public interest may approve the assignment or transmission, and an assignment or transmission so approved shall not, unless it is shown that the approval was obtained by fraud or misrepresentation, be deemed to be invalid under this section or section 40 if application for the registration under section 45 of the title of the person becoming entitled is made within six months from the date on which the approval is given or, in the case of a transmission, was made before that date.
Rule and business relevance
The Registrar may approve the described transfer on the prescribed application if its use would not be contrary to public interest. The approval has fraud, misrepresentation and title-registration timing qualifications.
Limits and related provisions
Do not assume any territorial split agreed privately is valid. Distinguish the special rule for a transmission application already made before approval from the six-month post-approval condition.
Hypothetical business example
Hypothetical example: Two buyers propose exclusive use of closely similar marks in different Indian regions. They obtain advice on the approval framework before treating the division as effective.
Practical decision flow
Identify the geographic division and overlapping goods or services.
Prepare the prescribed approval application with complete facts.
Track the section 45 registration condition and any transmission timing already satisfied.
Applying the Act and current procedure
Read the statutory rule together with the applicable Trade Marks Rules, current Registry directions and the facts of the particular mark. Forms, fees and procedural requirements should be checked against their current official source before filing.
Practical checklist
Do
- Identify the geographic division and overlapping goods or services.
- Prepare the prescribed approval application with complete facts.
- Track the section 45 registration condition and any transmission timing already satisfied.
Avoid
- Do not assume any territorial split agreed privately is valid. Distinguish the special rule for a transmission application already made before approval from the six-month post-approval condition.
Glossary
- Territorial split
- Exclusive-use rights divided between places in India.
- Public-interest approval
- The Registrar’s approval upon the statutory satisfaction described.
Frequently asked questions
Can approval permit a transfer otherwise restricted here?
Yes, subject to the stated conditions.
Is a private territorial agreement enough by itself?
No. The statutory restriction and approval framework must be examined.
Can an approval obtained by misrepresentation be relied on without qualification?
No. The provision expressly preserves that exception.
Need help applying this provision to your situation?
Contact BizeneedLast updated 10 October 2026