In India trademarks are registered under the Trademarks Act, 1999. For the registration of a trademark the applicant needs to file a trademark application with the Registrar of Trademarks. The Registrar may accept the application or may reject it if he finds any fault to it. There are certain trademarks which cannot be registered. These are provided under the Section 9 and Section 11 of the Trademarks Act, 1999 under the heading of absolute and relative grounds of refusal.
Absolute grounds for refusal of a trademark registration
The absolute grounds for the refusal of a trademark registration are given under the Section 9 of the Trademarks Act, 1999. The absolute grounds for the refusal of registration as per Section 9 of the Act are as follows:-
- A trademark cannot get registration if it does not possess any distinctive characteristic. Distinct character means that the trademark is capable of distinguishing the gods/ services of a person from that of their competitors.
- A trademark cannot get registration if it contains marks or indications that serve in the trade to define the quality, quantity, kind, intended purpose, values or geographical origin of the goods/ services.
- Any trademark cannot get registration if it contains the marks or indication that has become quite normal in the established practices of the trade.
- A trademark will not get registration if it is of such a nature that it deceives or causes confusion to the public.
- Any trademark which contains or comprises of the words which are likely to hurt the religious sentiments of any particular class or sections of citizens of India would not get registered.
- Any trademark will not get registration if it contains any scandalous or obscene matter.
- A trademark which is prohibited by the Emblems and Names (Prevention of Improper Use) Act, 1950 will likely to not get registered.
Under the Trademarks Act there are exceptions related to the first three points. The exception is that a trademark will get registration even if it is a distinct mark if it has acquired the distinctive character as a result of the use or is a well-known mark before applying for registration.
Relative grounds for refusal of a trademark registration
The relative grounds for the refusal of a trademark registration are given under the Section 11 of the Trademarks Act, 1999. The section also provides for the exceptions to the grounds of refusal. The trademarks under Section 11 can be registered if the exceptions are complied with. The relative grounds for refusal of a trademark are provided under Section 11 (1), which are as under:-
- A trademark which is likely to cause confusion among the public because it is identical with the already registered marks would not get registered.
- A trademark will not get registration if it confuses the public as it is similar to an earlier identical mark.
An exception to this section is that if there is an honest and concurrent use of the trademark, the Registrar would grant the registration.
Under the Section 11 (2) following are the grounds for refusal of trademark registration:-
- A trademark will not get registered if it takes unfair advantage of a similar well-known trademark.
- A trademark would not get registration if it is detrimental to the distinctive character of a similar well-known mark.
Under the Section 11 (3) following are the grounds for refusal of trademark registration:-
- A trademark will not get registration if the use of the trademark is bound to be prevented by the law of passing off protecting an unregistered mark.
- If the use of the mark is bound to be protected by the copyright laws.
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