In a layman’s language, trademarks that are not distinctive, that are descriptive or that give rise to a likelihood of confusion cannot be registered.

Extensively, Sections 9 and Section 11 of the Trademarks Act, 1999 provides the Absolute and the relative grounds under which a trademark registration shall be rejected i.e. cannot be registered.

Section 9, simply put, disallows the following trademarks from being registered trademark:

• Trademarks that do not have a distinctive character.

This simply means that the trademarks that cannot distinguish the goods or services of one person from that of another cannot be registered. The whole purpose of trademark law is to enable distinction between brands. No mark that takes away from this purpose can be registered.

• Trademarks that describe the good or service and give the consumer an idea about the quality, quantity or geographic origin of the particular good or service. Descriptive trademarks cannot be registered.
• Marks that have become customary in the current language.

For example, a consumer associates a restaurant with a chef.

• Apart from this marks that are deceptive, hurt religious sentiments, are obscene or describe the shape of the good cannot be registered.

Section 11 disallows the following from being registered trademark:

• Trademarks that may cause ‘likelihood of confusion’.

This simply means that identical marks on similar goods and similar marks on identical/similar goods. A consumer views the trademark in its entirety. The test is to see if the consumer can distinguish between similar trademarks. In Society Des Products vs. V.M. Confectionary Limited the court held that the words ZERO and AERO to be similar as mere phonetic dissimilarity was not enough to enable a common person from distinguishing between the two.

• Trademarks that are Well-known:

Trademarks that people are familiar with cannot be registered even if the goods are not similar as this would affect the reputation of the person who owns the well-known trademark.

We at ebizfiling.com can help you file the Trademark Registration Application with Trademark Ministry at a nominal cost starting with Rs. 5,899/- with the support of our professional team. Need more personalized solutions? Get in touch with us.

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