Updated : April 10, 2023Non-Registrable Trademarks in India: Absolute & Relative Grounds
Trademarks are distinct marks of identity which help businesses establish a unique brand and create distinguishable products or services in the market. In India, trademarks are governed under the Trademarks Act of 1999, which provides exclusive rights of ownership and usership to their owners. However, to legally enforce these rights, trademark owners will have to register their trademarks under the Trademark Act, and this will only be possible if these marks avoid every single characteristic which would make them unregistrable under law. Let’s have a look at all these characteristics in detail!
Absolute Grounds for Refusal of Trademark Registration
Section 9 of the Trademarks Act, 1999, sets out the absolute grounds for refusal of a trademark’s registration. These grounds of refusal are based on inherent flaws in the proposed mark itself, rather than external factors such as similarity of the proposed mark with an existing and already registered trademark.
The absolute grounds for refusal of a Trademark under Section 9 of the Trademarks Act are as follows
1. Marks Devoid of Distinctive Characteristics
These are too generic marks incapable of carrying any distinct characteristics which can distinguish the goods or services of one business from those of others.
2. Marks Commonly used in established Trade practices
These are marks which are currently being used in established trade practices to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the services.
3. Deceptive Marks
These marks are likely to mislead or deceive consumers about the nature, quality, or origin of the goods or services with which they are associated.
4. Obscene and Offensive Marks
These are marks that contain vulgar, offensive, or immoral language, imagery, or ideas that are likely to be considered obscene or offensive by the general public.
5. Marks prohibited under the Names & Emblems Act
These are marks that use names or emblems protected under the Names and Emblems Act.
6. Obvious shape of goods
These marks consist solely of the shape of the goods which results from the inherent nature of the goods themselves or is necessary for achieving the purpose that the goods are made for.
Relative Grounds for the Refusal of Trademark Act
Section 11 of the Trademark Act lays down the relative grounds for refusal of a trademark’s registration. Relative grounds of refusal refers to a set of reasons or grounds that can be used to refuse a proposed trademark due to its conflict with a similar existing trademark.
The relative grounds for refusal of a Trademark under Section 11 of the Trademarks Act are as follows
1. Confusingly similar marks
These are marks that are identical or similar to an existing registered trademark or an applied trademark.
2. Identical or similar marks for identical or similar goods or services
These are marks which are identical or similar to an existing registered or applied trademark in the same or similar classes of goods or services.
3. Similarity to a well-known mark
These are marks that are identical or similar to a well-known trademark in the same or different class of goods or services.
