How To Avoid Trademark Application Refusal

There are several grounds for the refusal of trademark registration, depending on the laws and regulations of the particular country or region. It is to be noted that a Trademark application can be refused irrespective of it being unique on a few grounds as mentioned in the act. A trademark application can be refused either on absolute grounds or relative grounds we have tried to explain both of them here.

Absolute Grounds for Refusal of Trademark Application:

Under absolute grounds, a trademark application may be refused if it is devoid of any distinctive character, consists exclusively of marks that are customary in the trade, or contains religious symbols or names of religious deities or personalities. It can also be refused if it is likely to deceive or cause confusion or is contrary to law, morality, or public order. These categories include the following:

1. Marks that are devoid of any distinctive character, i.e., marks that are common to the trade or are customary in the particular trade or industry.
2. Marks consist exclusively of the shape of goods that are necessary to obtain a technical result or give a substantial value to the goods.
3. Marks that consist exclusively of the shape that results from the nature of the goods themselves or the shape of goods that is necessary to obtain a technical result.
4. Marks that consist exclusively of marks or indications that have become customary in the current language or bona fide and established practices of the trade.
5. Marks that are likely to deceive or cause confusion, or are contrary to law, morality, or public order.
6. Marks that contain religious symbols or names of certain religious deities or personalities.

Relative Grounds for Refusal of Trademark Application:

Under relative grounds, a trademark application may be refused if it is identical or similar to an existing registered trademark or a pending trademark. Additionally, it may be refused if it is identical or similar to a well-known trademark in India, whether registered or not. It may also be refused if it is similar or identical to a trademark already in use in India in relation to identical or similar goods or services, creating a presumption of an existing right to use that trademark. These categories include the following:

1. A trademark application can be refused if it is similar or identical to an existing registered trademark or a trademark that is pending registration.
2. Even a trademark similar or identical to a well-known trademark in India, regardless of registration, can be refused.
3. If a trademark application is similar or identical to a trademark already in use in India for similar goods or services, the prior use establishes a presumption of an existing right to use that trademark.
4. Section 11 also allows for the rejection of a trademark application if it is likely to mislead or deceive the public, or if it violates any law or moral principle.

To sum up, Section 11 of the Trademarks Act 1999 provides a legal framework to refuse trademark registration in India on relative grounds. Its objective is to protect the rights of existing trademark owners and maintain the fairness and credibility of the trademark registration process in India.

Overall, a trademark application can be refused under various circumstances to protect the interests of existing trademark owners and ensure the fairness and credibility of the trademark registration system.