Jan 16, 2018
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Absolute grounds for refusal of Trademark registration

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Absolute grounds for refusal of Trademark Registration

What is Trade Mark?

Trade mark means

  • a mark capable of represented graphically and which is capable of distinguishing the goods or services of one person from choose of others and may include shape of goods, their packaging and combination of colors; and
  • in relation to a registered trade mark or mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and
  • some person having the right as proprietor to use the mark, and in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate to a connection in the course of trade between the goods or services, as the case may be, and
  • some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark.

Absolute grounds for refusal

1.  The trademarks shall not registered, which :

  1.  not capable  of  distinguishing the goods or services of one  person  from those of another person;
  2. consist exclusively of marks or indications which may serve in  trade 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 characterized of the  goods  or service;
  3. consist  exclusively of marks or  indications  which  have become  customary  in  the current language or in the  bonafide  and established practices of the trade.

Provided that a trade mark shall not be refused registration if before the date of application for registration it has acquired a distinctive character as a result of the use made of it or a well-known trade mark.

2. A mark shall not registered as a trade mark if it :

  1.  deceive the public or creates confusion;
  2. contains  or resembles of any matter relating to the religious  vulnerability of any class or section of India;
  3. comprises or contains scandalous or obscene matter;
  4. uses terms prohibited under the Emblems and Names (Prevention  of Improper Use) Act, 1950 (12 of 1950).

3. A  mark  shall not registered as a trade mark if  it  consists exclusively of-

  1. the  shape  of goods which results from the nature of  the  goods themselves;  or
  2. the  shape  of  goods which is necessary to  obtain  a  technical result;  or
  3. the shape which gives substantial value to the goods.

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