Examination of Trademark application and Grounds for refusal of registration of Trademark.
A trademark is a symbol of any Trade, Business, Product or Service, which may consist of a word, name, device, label or numerals used by a business to distinguish it products or services from other similar products or services. A registered trademark is an intangible asset or intellectual property for a business and is used to protect the company's investment in the brand or symbol, therefor whenever trademark authorities received an application for registration, they conduct an examination and search to maintain uniqueness of all brand and to provide safeguard to existing trademarks.
The Registrar shall cause the application to be examined as per provisions of the Act, wherein a search shall also be conducted amongst the earlier trademarks, registered or applied for registration, for the purpose of ascertaining whether there are on record in respect of the same goods or services or similar goods or services any trademark identical with or deceptively similar to the trademark applied for. The Registrar may cause the re-examination of the application including re-search of earlier trademarks at any time before the acceptance of the application but shall not be bound to do so.
On consideration of the application for registration of a trademark and any evidence of use or of distinctiveness or of any other matter which the applicant may or may be required to furnish, the Registrar has any objection to the acceptance of the application or proposes to accept it subject to such conditions, amendments, modifications or limitations as he may think fit and communicate such objection or proposal in writing to the applicant in the form of an examination report.
There are two types of grounds on a registrar can refuse to register a Trademark.
1 Absolute grounds for refusal of registration
(1) The trade marks with following characteristic shall not be registered:
(a) Which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person:
(b) Which 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 characteristics of the goods or services;
(c) 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.
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 is a well-known trade mark.
(2) A mark shall not be registered as a trade mark if ----
(a) It is of such nature as to deceive the public or cause confusion:
(b) It contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;
(c) It comprises or contains scandalous or obscene matter;
(d) Its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.
(3) 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;
(b) The shape of goods which is necessary to obtain a technical result; or
(c) The shape which gives substantial value to the goods.
2 Relative grounds for refusal of registration
(1) A trade mark shall not be registered if, because of
(a) Its identity with an earlier trade mark and similarity of goods or services covered by the trade mark; or
(b) Its similarity to an earlier trade mark and the identity or similarity of the goods or services covered by the trade mark. There exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark
(2) A trade mark which is...
(a) Identical with or similar to an earlier trade mark and
(b) To be registered for goods or services which are not similar to those for which the earlier trade mark is registered in the name of a different proprietor.
shall not be registered if or to the extent the earlier trade mark is a well-known trade mark in India and the use of the later mark without due cause would take unfair advantage of or be detrimental to the distinctive character or repute of the earlier trade mark.
(3) A trade mark shall not be registered if, or to the extent that, its use in India is liable to be prevented
(a) By virtue of any law in particular the law of passing off protecting an unregistered trade mark used in the course of trade: or
(b) By virtue of law of copyright.
(4) These type of words shall not be registered as a Trade mark:
(a) Which is the commonly used and accepted name of any single chemical element or any single chemical compound (as distinguished form a mixture) in respect of a chemical substance preparation, or
(b) Which is declared by the World Health Organisation and notified in the prescribed manner by the Registrar from time to time, as an international non-proprietary name or which is deceptively similar to such name.
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