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Absolute and Relative Grounds of Refusal (Trademark Act)

Absolute and Relative Grounds of Refusal (Trademark Act)
Absolute and Relative Grounds of Refusal (Trademark Act)


Absolute Grounds for Refusal (Section 9)

Section 9(1) of the Trademark Act outlines several grounds for refusing trademark registration:

  • Lack of Distinctive Character: Trademarks devoid of distinctive character or incapable of distinguishing goods or services may be refused.

  • Exclusively Descriptive or Generic Marks: Marks consisting exclusively of descriptive or generic terms, or those commonly used in trade to describe goods or services, are ineligible for registration.

  • Customary Usage: Marks exclusively comprising customary trade terms or those devoid of distinctive character due to established trade practices may face refusal.

However, trademarks may still be registered if they acquire distinctiveness through prior usage or if already recognized as well-known.


Descriptive Marks and Exceptions

Descriptive marks, while typically ineligible for registration, may obtain protection if they acquire secondary meaning or identification with a specific product or source. However, direct informational marks cannot be registered.

Additional Grounds (Section 9(2) and Section 9(3))

Further grounds for refusal include marks likely to deceive or cause confusion, hurt religious sentiments, contain scandalous or obscene matter, or violate regulations under the Emblems and Names (Prevention of Improper Use) Act, 1950. Additionally, marks exclusively depicting:

  • Shapes of Goods: Which arise from the nature of the goods, are necessary for technical results, or confer substantial value to the goods, are not eligible for registration.

Relative Grounds for Refusal (Section 11)

Section 11 specifies relative grounds for refusal, prohibiting registration if a mark:

  • Causes Confusion: Due to similarity or identity with earlier trademarks for similar or identical goods or services.

  • Unrelated Goods or Services: Marks identical or similar to earlier trademarks, registered for dissimilar goods or services, may be refused.

  • Legal Implications: Registration may be denied if the mark's use would conflict with laws governing passing off or constitute copyright infringement.


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