In this epoch, there is an axiomatic dictum that the trademarks help in creating a distinct identity of goods and services provided or being rendered by any organization. As the competition in the market is soaring up so, a huge number of goods and services of similar or identical nature; are available in the market in order to cater to the needs of its prospective customers by different names or brands. At this relevant point of time trademarks comes into the picture to secure the distinct and unique character of any particular goods and services from that of others. The process of registration of trademark has been made hassle-free in order to motivate people to get their products or services trademarked in order to secure their name/brand with the legal shield.
However, there are certain statutory provisions under The Trade Marks Act, 1950 prescribing the grounds attracting the refusal from the office of trademarks registry in getting the brand/name trademarked.
Section 9 of The Trade Marks Act, 1950 states the absolute grounds for the refusal of the registration of the trademark. Following are the absolute grounds for the refusal of registration of a trademark.
1. Lack of Distinct and Unique Character
The trademark that neither contains any distinctive or unique character nor is capable of distinguishing goods or services of one person from that of others is refused or denied for the registration by the Registrar. The sole reason behind this is that such trademarks have the potential of creating confusion or ambiguity in the minds of the general public. Nonetheless, such trademark can be registered successfully only on one condition if such trademark is a well-known trademark or has acquired a distinctive character as a result of its use prior to the date of its application for registration.
2. Usual Marks and Indications
The trademark that is composed of only marks and indications, which may be used in a trade to indicate kind, quality, quantity, intended purpose, values, its geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or services are also restricted from getting registered from the office of trademark registry. The reason behind such restriction is to restrain people from claiming propriety rights on such marks and indications which are normally/obviously used in a trade to represent the characteristics of goods and services. There exists one exception to this restriction that it can be registered on account of its becoming a well-known trademark or after acquiring a distinctive character owing to its use before the date of application for registration of a trademark.
3. Customary Terminology
The registration of a trademark can also be denied for such trademarks which exclusively composed of such marks and indications that have transformed customary in the current language in the bonafide and established practice of trade; except again if it has become a well-known trademark or has acquired distinct and unique character with its use before the date of application for the registration of a trademark.
4. Miscellaneous Absolute Ground
i. Such trademarks are also denied/ refused for the purpose of registration if it is of such nature or comprised of such matter which is likely to hurt the religious sentiments of any class or segment of society/ citizens of India.
ii. The trademark is also denied registration if it contains any scandalous matter or obscene content; keeping in view the public policy in order to promote harmony and social peace.
iii. The trademarks which consist of such names or emblems which are prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950) are also denied or refused for the registration in order to observe the relevant provisions of the legislation mentioned above.
iv. Further some trademarks are also denied registration on the following technical grounds:
a) If it is in the shape of goods which results from the nature of the goods themselves;
b) If it consists of such shape of goods which is essential in order to derive the desired technical results of conclusions;
c) If it consists of such shape which is of such a nature as to give substantial value to the goods.
Nevertheless, there is one explanation also attached to Section 9 of the Trade Marks Act, 1950 which prescribes that the nature of goods or services for which the trademark is used or proposed to be used shall not be the substantial ground or any ground for the refusal of registration of the trademark.
Conclusion:
In the above discussion, we have exhaustively studied the grounds for the refusal of the registration of a trademark. From the above exploration, one thing is evidently clear that the registration is aimed or focussed on protecting the distinct and unique character of a trademark which enables goods and services of a person to be distinguished or stand out of queue from goods or services belonging to that of others.
Nitin Gupta
Trademark Attorney at Lawgenix-Legal Geniuses