Trade Mark application are generally objected, if your application contains any of grounds as prescribed under section 9 and section 11 of Trade Mark Act, 1999. These duo sections deal with absolute and relative grounds on the basis of which a trademark application can be objected.
Let's understand these grounds piece by piece which are as follows:
ABSOLUTE GROUNDS (SECTION 9):
- Those marks which are devoid of any distinctive character.
- Trade marks which may serve in trade to designate the kind, quality, values or other characteristics of the goods and services in question;
- Mark is of the nature to deceive or create confusion;
- Mark contains or consists of any matter which likely to hurt the religious of any class of citizens; or
- Lastly, its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.
RELATIVE GROUNDS (SECTION 11):
Section 11 lays down that a mark shall not be registered if there are plausible reasons to cause confusion amongst the public including likelihood of association with an earlier trade mark.
A trade mark shall also not be registered if its use in India is liable to be prevented by virtue of any law of passing off protecting an unregistered trade-mark used in the cause of trade or its use in India is liable to be prevented by virtue of Law of copyright.
Besides the reasons cited above, elements of distinctiveness always remains the best criterion for registrability of a mark as a trade mark.
The term distinctiveness has to apprehend in relation to trade mark, not in isolation. Distinctiveness has to be understood as some quality in the trade mark which earmarks the goods so marked as distinct from those of the other products.
Distinctiveness may be:
- Inherent; or
- Acquired over a period of time.
The trade mark is based on the principle that one good can have only one origin, just as one man has one mother; it means that customer easily able to distinguish the products from that of competitors.