WHEN WILL A TRADEMARK GETS REFUSED?

Trademark Applications filed before the Registrar of Trademarks, go through certain mandatory stages before Registration. After submission of the Application, the Registry will scrutinize the applications. After scrutiny, the registry shall refuse the mark if the same is not in accordance with the conditions specified in the Trademark Act,1999 and Trademark Rules,2017.

Absolute Grounds for Refusal:

Section 9 of the Trademarks Act deals with absolute grounds for refusal of a Trademark. A trademark application can be refused on the absolute grounds as provided under Section 9. Before going to the procedure of the same, one must understand the essence of Section 9 of the Trademarks Act.

Section 9 in a Nutshell

Any Application filed for registration of Trademark is liable to be refused if the mark

  • Is Devoid of any distinctive character, not capable of distinguishing the goods or services of one person from those of another person.
  • Contains marks or indications which may serve in trade to designate the kind, quality, quantity, or other characteristics of goods or services.
  • Exclusively contains of marks which have become customary in the practices of the trade.
  • Can deceive or confuse the public.
  • Is likely to hurt the religious sentiments of any class or section of Indian citizen.
  • Contains any kind of scandalous or obscene
  • Is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.
  • Contains the shape of goods which results from the nature of the goods
  • Contains The shape of goods which is necessary to obtain a technical result.
  • Contains The shape of goods which adds substantial value to the goods.

However, it is also clarified that the trademark application shall not be refused registration, on the ground of the nature of goods or services in relation to which the trademark is used or proposed to be used.

Opportunity of Being Heard:

The Applicant will be given an opportunity to furnish necessary information to prove that the Trademark is not liable to be dismissed under Section 9 of the Act. Only after hearing the Applicant, the Registry shall pass an Order of Refusal if any.

The Trademark Act has clearly stated the grounds of refusal for registration and every person who intend to apply for a Trademark Registration need to understand the same before applying of registration of Trademark.