The registration of descriptive trademarks is prohibited under Section 9(1)(b) of the Trade Marks Act, 1999, unless they are distinctive.

In practice, this is one of the most common reasons for receiving a Notice of Reasons for Rejection, i.e. How can I check the status of my trademark. Examples include the terms "Pizza Restaurant" for a pizza restaurant and "Tennis Racquets" for tennis racquets. Email or call us so we can get to work! The court observed that “no person can claim the name of a holy text as a trademark.”. Provides that a ‘Name’ includes any abbreviation of a name. Thus, the Trade and Merchandise Marks Act, 1958 was enacted which was finally repealed by the Trade Marks Act, 1999.

Need more personalized solutions? The mission of our registered patent attorneys is to equip you with solid IP rights that result in funding, growth and sales. The key question analyzed by the USPTO is “. In this blogpost, Kriti Bhatnagar, Student, National Law Institute University, Bhopal, writes about what is a trademark, different kinds of trademark and what cannot be trademarked in India. A trademark is not registerable unless it is distinctive.

The Trademarks Act (1999) makes this easy by dividing what cannot be registered into two grounds: absolute grounds of refusal (Section 9) and relative grounds of refusal (Section 11). The trademarks which consist exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade shall not be registered. There is usually a lot of confusion surrounding the kind of trademarks that can be registered under the Trademarks Act 1999 While choosing an apt trademark that Marks that have become customary in the current language.

A great trademark is appropriate, dynamic, distinctive, memorable and unique. Thus, we see that the products and services have been limited to such classes by the Government. The first legislation with respect to trademarks was the Trade Marks Act, 1940 which was similar to UK Trade Marks Act, 1938. A consumer views the trademark in its entirety. How long does it take for trademark registration?

Do I need to be using my trademark to register it? At the other end are trademarks that cannot be registered. | Powered by. In Society Des Products vs. V.M. The trick is to be conversant with what cannot be registered. Copyright Registration Procedure in India, Difference Between Unregistered And Registered Trademark, Compulsory Licensing of Copyright in India, WIPO-Lex Judgments-Database of Judicial Decisions on Intellectual Property, A Comparative Study Of European And Indian Patent Laws, Competitive Ramifications and Re-Tooling Patent Pools in India, Software Patents in India – Understanding Patentability of Software Through Indian Judgements, WIPO Adds Covid-19 Terminology in its Pearl Database, Patents & Open-source Licenses – A Tussle of Polarizing Ideologies, WIPO’s Virtual Exhibition on Artificial Intelligence and Intellectual Property. Section 9 mentions the absolute grounds and section 11 provides with the relative grounds for refusal. If certain marks become offensive to the religious sentiments of a person, they will not be considered as trademarks. India has emerged as the third largest base for start-ups in the world, according to the NASSCOM Start-Up Ecosystem Report, 2015. * All the images are used to set an example of various types of trademark. For example, a consumer associates a restaurant with a chef. It should be small, simple and attractive and suggest the desirable qualities of the goods or services to which the mark pertains.

If the use of a mark is prohibited under the aforementioned act, it shall not be used as a trademark. – Primo Angeli Introduction The word, trademark, denotes words legally registered or established by use as representing […] Extensively, Sections 9 and Section 11 of the Trademarks Act, 1999 provides the Absolute and the relative grounds under which a trademark registration shall be rejected i.e. Descriptive trademarks cannot be registered. My upcoming article will cover the difference between unregistered and registered trademarks and outline 7 reasons for registering trademarks. While it is good to trademark your product or logo or brand. Corporate Tax Rate Cut: Diwali Celebrations Come Early for India Inc. Union Budget 2019-20 : Implication on Companies, Indian Patent and Trademark Office Issues Notice for Corrections, Understanding Difference Between Word, Logo and Logo Composite Mark, Pilot 18. Let us know if you have any Questions.

EbizFiling.com is an eminent business platform and a progressive concept, which helps end-to-end incorporation, compliance, advisory and management consultancy services to clients in India and abroad. Startup Patent Attorney | IP Lead Partner, marks which appear ornamental or convey a thought or emotion. Also, if such names are used dishonestly, they would not be given the status of a trademark. Trademarks that are common names, but are in no way related to the goods or services they represent. Any mark which is similar to an earlier mark cannot be used as a trademark for another product. In Imperial Tobacco Company of India Ltd v. Registrar of Trademarks, AIR 1968 Cal 582, the Calcutta High Court held that “the trade mark “Simla” with the label is composite in character. Section 11 disallows the following from being registered trademark: Trademarks that may cause ‘likelihood of confusion’. While choosing an apt trademark that can be registered might seem to be a long drawn process, it is actually very simple. They may or may not be registrable depending on the extent to which they suggest the nature of the goods/services. Monitoring and opposing third party applications for similar marks can be a very expensive and unending commitment. Further provides that a ‘Package’ includes any case, box, container, covering, folder, receptacle, vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid, stopper and cork.

Section 11 disallows the following from being registered trademark: This simply means that identical marks on similar goods and similar marks on identical/similar goods. Prohibited under the emblems and names (prevention of improper use) Act, 1950. In this blogpost, Kriti Bhatnagar, Student, National Law Institute University, Bhopal, writes about what is a trademark, different kinds of trademark and what cannot be trademarked in India. Confectionary Limited the court held that the words ZERO and AERO to be similar as mere phonetic dissimilarity was not enough to enable a common person from distinguishing between the two. Provides that the mark must be present on goods by some means or the other. If there is any indication which serves in the trade as to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service, it shall not be used as a trademark.

A trademark cannot be registered if someone else has already been granted a right for this trademark. As time elapsed, it was seen that the act was inept to meet the requirements of the society. Your email address will not be published. . Do you enjoy seeing others register your innovation? Section 9(3) of the Trade Marks Act, 1999 states-, A mark shall not be registered as a trade mark if it consists exclusively of—, (a) The shape of goods which results from the nature of the goods themselves; or, (b) The shape of goods which is necessary to obtain a technical result; or. A Trademark, to be capable of registration, must satisfy the following essential conditions: What cannot be registered as a Trademark? As long as your trademark is different from existing trademarks and it does not describe the nature of the goods or services it represents, it can be registered!
In Society Des Products vs. V.M. Bible passages and other religious texts may be considered as incapable of indicating source. By continuing past this page, you agree to our Terms of Service, Cookie Policy, Privacy Policy, Refund Policy and Content Policies. On the spectrum of registrability, invented/fanciful words rate first. Its geographical signification is, therefore, plain and unequivocal.”. They are also used to assess the worth of labour in manufacturing goods or services. Get in touch for free consultation on info@ebizfiling.com or call 9643203209. Trademarks can be really tricky. c) Trademark which consists only of such marks or indication which have become customary in the current language or in bona fide and established practice of trade. how the designation would be perceived by the relevant public.” This inquiry involves looking into the meaning of the word(s) and the context of use. Musical notes in the form of musical notations are accepted as trademarks in India, but noises such as dog barking cannot be a trademark. See the trademark application and post-registration timelines. Can an Internet domain name function as and be registered as a trademark? Names, numerals, letters, devices, a combination of colours, slogans, signatures, sound marks and smells inter alia may be registered. For example, Otis’s trademark “Escalator” for moving staircases became a generic word and therefore, the Trademark Office concluded that Otis cannot use its trademark since the mark has become customary in respect of moving stairs. The criterion of being distinct has been interpreted widely in the Indian law. A consumer views the trademark in its entirety.

It should be different from other trademarks of the same class and should be registerable. Apart from this marks that are deceptive, hurt religious sentiments, are obscene or describe the shape of the good cannot be registered. A refusal based on the mark merely conveying information about the goods or services is somewhat similar to a rejection based on mere descriptiveness except for one key distinction: merely descriptive rejections might be overcome with evidence of acquired distinctiveness. Further, You may be interested to read the following posts: No 8, 1st Floor, 15th Cross, 100 Feet Ring Road, JP Nagar 6th Phase, Bangalore, India Direction: Google Map, Tel: +91-80-42173649 Mob: +91-9916116810 Email: contact(at)intepat.com Contact Us Form Online Appointment, With the growth of consumerism and brand loyalty, the trademark has become an important asset, Considering the abrupt outbreak of the COVID-19 pandemic and acknowledging the expanding number of COVID-19.

In order for a term to function as a mark and thus qualify for registration, a mark must serve as an indicator of the source of origin of the relevant goods or services. How is trademark protection different from copyright and patent protection? My goal with this series of articles is to cover the basics of trademarking, not to turn you into a trademark professional. An ideal trademark should be easy to speak, remember and spell. Descriptive trademarks cannot be registered. The whole purpose of trademark law is to enable distinction between brands. If a trademark application is refused on grounds that the mark is incapable of indicating source, then an applicant will not be able to prevail over the rejection with evidence of acquired distinctiveness.

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