Non-Registrable Trademarks in India: Absolute & Relative Grounds

Editorial Team
Updated
April 10, 2023

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.

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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.

FAQs

Q1: What are Absolute Grounds for refusal of registration of Trademarks?

Absolute Grounds for refusal of trademark registration in India are inherent flaws in the proposed mark itself. These grounds include marks that are generic, commonly used in established trade practices, deceptive, obscene or offensive, prohibited under the Names & Emblems Act, or resulting solely from the obvious shape of the goods it represents.

Q2: Why should Trademarks be Distinct?

Distinctiveness of a Trademark is crucial for its registration under the Trademark Act. Marks that lack distinctive characteristics and are too generic in the public eye may get refused for registration. Moreover, a distinctive trademark helps differentiate the goods or services of one business from those of others in the market, making it easier for consumers to identify and associate a mark with its source of origin.

Q3: Can trademarks containing offensive content or immoral ideas be registered?

No, trademarks containing vulgar, offensive, or immoral language, imagery, or ideas that are likely to be considered obscene or offensive by the general public are not eligible for registration. Such marks will be rejected under the absolute grounds for refusal of Trademark Registration.

Q4: What are Relative Grounds for refusal of registration of trademark?

Relative Grounds for refusal of registration of trademark refers to reasons for refusing a proposed trademark due to its conflict with an existing trademark. These grounds include marks that are confusingly similar to an existing registered or applied trademark, marks that are identical or similar to existing marks for identical or similar goods / services, and marks that are similar to well-known trademarks.

Q5: Can a trademark be refused if it resembles an existing trademark in different class of goods or services?

Yes, a proposed trademark can be refused registration if it resembles an existing trademark, even if it is for different classes of goods or services, provided the existing mark is well-known and is associated with a popular brand. The refusal will be affected under the relative grounds for refusal of registration of trademark which protects well-known marks beyond the limited scope of goods and services they are being used for.

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