Trademarks in India are registered under the Trademarks Act, 1999 (“Act”). An application is filed to the Registrar of Trademarks (“Registrar”) for registration. The Registrar may accept the application and proceed to register the trademark. He can also reject the application if he finds any fault in it. The Act also provides a list of trademarks which cannot be registered.
Section 9 of the Act lists down the absolute grounds for refusal of registration. If any trademark comes under the grounds listed in this section, it cannot be registered. The absolute grounds for refusing registration are –
The Act provides for an exception with regard to the first three points, i.e. where the trademarks lack distinctiveness or which contain exclusive marks which sever in the trade to define kind, quality etc. or contains marks which have become customary in the trade practices. The exception is that the trademarks that come under the first three points shall not be refused registration if the trademark has acquired a distinctive character as a result of the use or is a well-known trademark before applying for registration.
Section 11 of the Act provides relative grounds for refusal of registration. This section provides exceptions to the grounds of refusal. If the exceptions are complied with, then the trademarks under section 11 can be registered.
Section 11(1) states the following grounds for refusal –
An exception to this section is if there is an honest concurrent use of the trademark, the Registrar of Trademarks may allow the registration.
Section 11(2) states the following grounds for refusal –
Section 11(3) states the following grounds for refusal –
The trademarks mentioned in Section 11(2) and 11(3) shall not be refused registration unless an objection is raised in opposition proceedings by the proprietor of the earlier trademark.
Section 11(4) provides an exception to all the grounds mentioned above. It states that the trademarks that fall under Section 11 can be registered if the proprietor of the earlier trademark consents to the registration. If the proprietor of the earlier well-known trademark gives his consent to register the latter trademark, the Registrar can register it.
Section 13 and 14 of the Act provides that trademarks containing specific names cannot be registered. Trademarks which have a word that is commonly used of any single chemical element or chemical compound in relation to a chemical substance or preparation cannot be registered.
Trademarks which falsely suggest a connection with any living person can be declined registration by the Registrar unless the consent of such living person is obtained. Similarly, trademarks which falsely suggest a connection with any dead person within twenty years of submitting the application for registration can be declined by the Registrar unless the consent of legal representatives of such person is obtained.
A few illustrations of the words which were rejected registration on the basis of the above grounds are given below –
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