![\"Types](\"https:\/\/corpbiz.io\/learning\/wp-content\/uploads\/2021\/02\/Types-of-the-Trademark-that-Cannot-be-registered-under-Trademark-Law.png\")
<\/figure><\/div>\n\n\n\nNot having a Distinctive Character<\/h3>\n\n\n\n
It counts the trademark that does not have a specific character that\ncan distinguish goods or services from others. This means a brand name that is\nalready registered or is applicable for registration cannot be trademarked\nunder trademark law. This can cause a dilemma among consumers. For instance, no\nbrand can be registered with “TATAA” because it is similar to a\nregistered brand “TATA”.<\/p>\n\n\n\n
A Trademark which shows Kind or Quality <\/h3>\n\n\n\n
A brand name that exists of the word generally used in day-to-day\nlife to identify the product cannot be trademarked under trademark law. It may evolve\nkind, quality, quantity, values, geographical origin, along with its\ncharacteristics. Following are some examples that cannot be trademarked.<\/p>\n\n\n\n
- Perfect Arcs\u2013 It exhibits the quality of perfection.<\/li>
- 10 Liter bottles\u2013 It exhibit quantity.<\/li>
- Assam\u2013 It exhibits the geographical basis.<\/li>
- Mobile\u2013 It is an ordinary word to recognize mobile phones in day to day life.<\/li><\/ul>\n\n\n\n
Read our article<\/b>:Overview on Cost of Trademark Registration <\/a><\/mark><\/p>\n\n\n\n
Identically Identifiable or Misleading as Other Registered\nTrademarks<\/h3>\n\n\n\n
The trademark is prohibited under trademark law, when;<\/strong><\/em><\/p>\n\n\n\n
- It refers to a nature that\ndeceives the public.<\/li>
- In any word or case, the\nreligious sentiments of any section of India’s citizens are likely to be hurt.<\/li>
- Includes scandalous or obscene\ncontent.<\/li>
- Forbidden under the Emblems and\nNames (Prevention of Improper Use) Act.<\/li>
- It contains malicious or vulgar\ncontent.<\/li>
- Prohibited under the Emblem and\nNames (Prevention of Improper Use) Act.<\/li><\/ul>\n\n\n\n
The Shape of Goods in the below-mentioned\nConditions <\/h3>\n\n\n\n
Trademarks can be registered for goods of specific size under\ntrademark law. For example the size of a Coca-Cola bottle. But the following\ntypes of goods cannot be trademarked.<\/p>\n\n\n\n
- The natural shape of the\nproduct.<\/li>
- A figure that gives sufficient\nvalue to the goods.<\/li>
- A trademark similar to any\nother trademark having a different goods and service description will not be\nregistered if the registered trademark is a well-known trademark in India and\nthe use of the brand will provide undue advantage to the applicable trademark.<\/li><\/ul>\n\n\n\n
Shows an Association with the Death of a Living Person<\/h3>\n\n\n\n
If the trademark shows a relationship with a living person or a\nperson who has died 20 years prior to the date of an application, such\napplication will not be registered unless one from such survivor The NOC is not\nreceived or the NOC becomes a dead person.<\/p>\n\n\n\n
If a registrar can fit in, the registrar may register or reject the\ntrademark subject to any amendments, conditions, or limitations.<\/p>\n\n\n\n
What are the Grounds of Refusal of any Trademark Application?<\/h3>\n\n\n\n
Section 9 of the Act deals with Absolute Ground whereas Section 11 of the Act deals with the Relative Ground. Both sections provide certain grounds for a registration trademark to be refused.<\/p>\n\n\n\n
Absolute Grounds for Refusal of Registration under Trademark Law<\/h3>\n\n\n\n
Section 9 of the Act lists the absolute grounds for denial of\nregistration. If a trademark falls under the Aadhaar listed in this section, it\ncannot be registered. Absolute grounds for refusal of registration are given\nbelow:-<\/p>\n\n\n\n
- Trademarks that have no\nspecific character. Specific character means trademarks that are not capable of\ndistinguishing one person’s goods or services from another.<\/li>
- Trademarks that specifically\ncontain markings or signs that serve to define the type, quality, quantity,\nintended purpose, prices, or geographic origin goods or services provided in\nthe trade.<\/li>
- Trademarks that specifically\ncontain markings or signs that have become customary in current language or\nestablished practices of trade.<\/li>
- Trademarks are of a nature that\ndeceives the public or creates confusion.<\/li>
- Trademarks which are likely to\ninjure or involve the religious sensibilities of any class or classes of\ncitizens of India.<\/li>
- Trademarks that specifically\ncontain markings or signs that have become customary in current language or\nestablished practices of trade.<\/li>
- Trademarks are of a nature that\ndeceives the public or creates confusion.<\/li>
- Trademarks which are likely to\ninjure or involve the religious sensibilities of any class or classes of\ncitizens of India.<\/li>
- Trademarks that contain or\ncontain scams or obscene cases.<\/li>
- If the use of the trademark is\nprohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.<\/li>
- Trademarks containing the\nmarkings of the shape of the goods originating from the nature of the goods.<\/li>
- Trademarks that contain traces\nof the size of goods that are required to achieve a technical result.<\/li>
- Trademarks with markings that\ngive sufficient value to the goods.<\/li><\/ul>\n\n\n\n
Relative Grounds for Refusal of Registration<\/h3>\n\n\n\n
Section 11 of the Act provides relative grounds for denial of\nregistration. This section provides an exception based on denial. If exceptions\nare complied with, trademarks may be registered under Section 11.<\/p>\n\n\n\n
Section 11 (1) has the following grounds for refusal under trademark law:-<\/strong><\/em><\/p>\n\n\n\n
- Trademarks that confuse the\npublic because it is similar to previously identical trademarks of goods or\nservices.<\/li>
- Trademarks that confuse the\npublic because it is identical with previously identical trademarks of goods or\nservices.<\/li><\/ul>\n\n\n\n
Names which Cannot be Registered<\/h3>\n\n\n\n
Sections 13 and 14 of the Act provide that trademarks with specific\nnames may not be registered under trademark law. Any commonly used trademarks\nof a chemical substance or preparation concerning any chemical element or\nchemical compound may not be registered.<\/p>\n\n\n\n
Trademarks that suggest a wrong relationship with a living person\nmay be cancelled by the registrar unless such survivor’s consent is obtained.\nSimilarly, trademarks that wrongly suggest a relationship with any deceased\nperson within twenty years of applying for registration may be rejected by the\nregistrar unless the consent of such person’s legal representatives is obtained\ndoes not occur.<\/p>\n\n\n\n
Illustrations of Refusal of Registration<\/h3>\n\n\n\n
A few illustrations of the words which were rejected registration based on the above grounds are mentioned below:-<\/strong><\/em><\/p>\n\n\n\n
- Registration was rejected as an indication of geographic origin, with terms such as ‘ayan Himalayan’ or ‘Shimla’<\/strong><\/em>[1]<\/strong><\/em><\/a><\/sup>.<\/li>
- Words like ‘janta’ or like \u2018kitchen’ were not registered as common expressions.<\/li>
- The word ‘sappho’ was not registered for cleaning power and liquid, because the word clean saif means clean. The term indicated the character of the goods.<\/li>
- The term ‘Ombrella’ for the shower bath curtain was not registered as it was descriptive of the shower curtain like an umbrella.<\/li>
- The term ‘heavenly’ was not registered for cosmetics because it is a term that is in common use.<\/li>
- A mark consisting of a representation of the chain wheel and parts of the chain and an empty space was denied registration due to the chain and chain wheels being distinctive on the ground.<\/li><\/ul>\n\n\n\n
What are the Exception Available\nto the Refusal?<\/h2>\n\n\n\n
An exception to this section is the registrar of trademarks may\nallow registration if there is an honest concurrent use of the trademark under\ntrademark law.<\/p>\n\n\n\n
Clause 11 (2) lays down the following grounds for denial \u2013<\/strong><\/em><\/p>\n\n\n\n
- Trademarks that will take unfair advantage of a similar or similar already well-known trademark in India.<\/li>
- Trademarks would be detrimental to India’s specific character or reputation of a similar or similar pre-identified trademark.<\/li><\/ul>\n\n\n\n
Clause 11 (3) lays down the following grounds for denial –<\/em><\/strong><\/p>\n\n\n\n
- Use of trademarks is bound to\ncircumvent the law protecting unregistered trademarks used in the course of\ntrade.<\/li>
- The use of trademark is bound\nto be stopped by the law of copyright.<\/li><\/ul>\n\n\n\n
Trademarks mentioned in Sections 11 (2) and 11 (3) will not be\ndenied registration unless an objection is raised in the opposition proceedings\nby the first trademark owner.<\/p>\n\n\n\n
Section 11 (4) <\/em><\/strong>provides an exception\nto all the above grounds. It states that trademarks that fall under Section 11\ncan be registered if they are the trademark consent owner before registration.\nIf the owner of an already famous trademark gives his consent to register the\nlatter trademark, the registrar can register it.<\/p>\n\n\n\n
Concluding Remark<\/h2>\n\n\n\n
Before implementing a trademark registration<\/strong><\/a>, it is important to ascertain the availability of the trademark. Many things have to be considered. If the brand name is created after considering all such points, there will be a minimal rejection of the trademark application.<\/p>\n\n\n\n
Among the different kinds of marks, descriptive marks are not retrospective\nbecause they fail to differentiate the applicant’s goods\/services in question.\nHowever, where the mark has distinguished itself from the widespread use of the\nmark, it is known only about that particular applicant; even such a descriptive\nmark may be registered. However, the entire registration would be hesitant to\nshow that the mark has indeed ‘acquired distinction’, reflecting the immense\nand continual use.<\/p>\n\n\n\n
In some cases, conspicuous marks are usually regressive since it is only a fine line between descriptive and suggestive marks; in some cases, suggestive marks may not secure registration. To learn more about the Marks which can be trademarked under trademark law in India, you can refer to the blog by Corpbiz<\/strong><\/a>. <\/p>\n\n\n\n
- Registration was rejected as an indication of geographic origin, with terms such as ‘ayan Himalayan’ or ‘Shimla’<\/strong><\/em>[1]<\/strong><\/em><\/a><\/sup>.<\/li>