What cannot be registered as Trademark? Section 9 & 11
What cannot be Registered as Trademark? Section 9 & 11 Of Trademark Act 1999
Introduction
In India, Trademarks are registered under the Trademarks Act, 1999. Also, some trademarks can’t be registered due to rules. These include common words, descriptive terms, offensive or misleading marks, and those too similar to existing trademarks. This article shall guide you to what cannot be registered under the Trademark criteria.
What is a Trademark?
A trademark is a unique symbol, word, phrase, or design that helps identify and distinguish a company’s products or services.
What is a Trademark Registration?
Trademark registration is the legal process of securing exclusive rights to a brand name, logo, or symbol, preventing others from using it without permission.
What Cannot Be Registered as Trademark in India?
Not everything can be registered as a trademark. Here are some things that cannot be used as a trademark in India:
1. Common or Generic Words
Words that are too common and used by everyone (e.g., “Milk” for dairy products).
Everyday words that don’t make a brand special.
2. Descriptive Words
Words that just describe the product (e.g., “Sweet” for chocolates or “Soft” for pillows).
A trademark should be unique, not just explain what the product is.
3. Misleading or Confusing Names
A name that gives a false impression (e.g., calling something “Organic” when it’s not organic).
A name that confuses people about what the product really is.
4. Religious Names or Symbols
Anything that hurts religious feelings cannot be registered (e.g., using the name of a god for a brand in a disrespectful way).
5. Offensive or Bad Words
Words or pictures that are rude, offensive, or inappropriate will not be allowed.
6. National Symbols and Flags
Things like the Indian flag, national emblem, government seals, or names of famous leaders cannot be used as trademarks.
International organization names like United Nations (UN) also cannot be registered.
7. Copies of Existing Trademarks
If your trademark looks or sounds too much like an already registered brand, it won’t be accepted.
For example, trying to register “Nkie” for shoes (which is too close to “Nike”).
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8. Well-Known Brands
Even if a famous brand is in a different industry, you cannot copy its name (e.g., you can’t use “McDonald’s” for a clothing brand).
9. Similar-Looking or Sounding Trademarks
Words that look or sound very close to an existing brand (e.g., “Pepsi” vs. “Pipsi”).
10. Common Names or Surnames
Using a very common name (e.g., “Sharma Electronics”) might not be allowed unless it is well-known.
11. Common Product Shapes
If a product’s shape is normal or necessary (like a round ball for a football), it can’t be trademarked.
The shape must be unique to be registered.
What does the law say under Sections 9 and 11 of the Trademarks Act, 1999, for refusal in India?
Section 9 : Absolute Grounds for Refusal
This section lists reasons why a trademark cannot be registered based on its own nature, regardless of other trademarks:
Not Unique : If a trademark is too common and doesn’t help people recognize a specific brand, it won’t be registered.
Descriptive Words : If a trademark simply describes the product (like “Sweet” for candy), it won’t be accepted.
Commonly Used Words : If the word or symbol is commonly used in the industry, it can’t be registered as a trademark.
Misleading : A trademark that gives a false idea about a product (e.g., “Organic” for a product that isn’t organic) will be rejected.
Hurts Religious Sentiments : If a trademark offends the religious beliefs of any group, it won’t be allowed.
Offensive or Immoral : Trademarks with bad words or inappropriate images won’t be registered.
Government Symbols : If a trademark includes national emblems, flags, or names that are legally protected, it can’t be used.
Section 11 : Relative Grounds for Refusal
This section deals with conflicts with existing trademarks and possible confusion among customers:
Too Similar to an Existing Trademark : If your trademark looks or sounds too much like another registered one, it won’t be accepted.
Copying a Well-Known Brand : If your trademark is similar to a famous brand, even if it’s for different products, it may be rejected.
Confusing Customers : If your trademark could make people think it’s related to another brand, it won’t be approved.
Unfair Business Practices : If the trademark could be used to trick customers or damage another brand’s reputation, it won’t be registered.
The Difference
Section 9 focuses on whether the trademark itself is suitable for registration.
Section 11 looks at whether it might create confusion with existing trademarks.
Conclusion
Certain marks, such as generic terms, commonly used words, misleading marks, or those that go against public morality, cannot be registered. Descriptive phrases that only explain the product’s type or quality are also ineligible.
Ishita Ramani is a young woman entrepreneur and currently the Operations Director at Ebizfiling India Private Limited. In her entire career so far, she has led a team of 50+ professionals like CA, CS, MBAs and retired bankers. Apart from her individual experience on almost every facet of Indian Statutory Compliances, she has been instrumental in setting up operations at Ebizfiling.com! Read about her journey at- https://www.greatcompanies.in/post/ishita-ramani-operation-director-at-ebizfiling-india-pvt-ltd
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