A trademark is a type of intellectual property that can be registered, usually consisting of a sign, design, or any expression that helps people recognize the products of a company so that they have a choice and it is easier for them to differentiate between the products of two different companies.
A trademark is a registerable property that provides special rights to the owner of the property.
A person having registered his trademark with the authorities shall have:-
• Exclusive Rights to use the trademark in the market.
• Builds trust and Goodwill of the company providing more recognition to the company
• Helps the people in differentiating the product from the competitors’ product
• An intellectual property is an asset of the company helps in the creation of asset of the company.
• Use of ®(registered) symbol
• Protection against infringement of the trademark by any other person
• A trademark registration helps in the protection of the trademark for 10 Years at a low cost, which can further be renewed.
Grounds of Trademark Rejection:
A trademark, when applied for registration, goes through a prescribed procedure by the appropriate authority, which will hold with him the power to reject any trademark for the following reason.
There can be two types of refusal for trademark registration under the Trademark Act,1999
• Absolute grounds of Refusal(Section 9)
• Relative grounds of Refusal(Section 11)
Absolute Grounds of Trademark Rejection:
An examination officer shall hold the right to refuse registration of Trademark if it is violative with any part of the Section 9 of the Trademark Act,1999
• If any trademark which does not hold any distinctive character i.e. does not have any distinguishing feature.
• If any trademark consists of marks or indications which may help in the trade of the product or 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.
Any trademark shall not be registered if
• It is made with the intent to deceive the public or cause any confusion
• It is hurtful to religious susceptibilities of any class or section
• It contains any matter that can be considered as scandalous or obscene or is prohibited Emblems and Names (Prevention of Improper Use) Act, 1950
• It is made of a shape of goods which is either descriptive of the nature of the goods or of the shape of goods necessary to obtain the technical result of the product, also of any shape which gives substantial value to the goods.
Relative Grounds of Trademark Rejection:
The relative grounds on which an examination officer can refuse trademark registration are
• If the identity of the trademark is so similar to an earlier trademark that is registered, it can cause confusion on the part of the public.
• If the trademark is similar to an earlier trademark which is a well-known trademark 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 trademark.
• If it is prevented by virtue of any law, in particular, the law of passing off protecting an unregistered trademark used in the course of trade or by virtue of the law of copyright.
However, the examination officer shall not refuse registration of a trademark which is similar to an earlier trademark when
• The proprietor of the earlier trademark consents to the registration of the latter trademark
• There is no objection raised by the proprietor (on any one or more of those grounds) of the trademark which is registered earlier, during the opposition proceedings.
This section includes the fact that the registrar when considering an application for registration shall always protect a well-known trademark against the identical or similar trademarks, and shall always take into consideration the bad faith involved either of the applicant or the opponent affecting the right relating to the trademark.
This section also includes that when a trademark is registered with the authority by disclosing all the material information to the registrar or where the trademark has been acquired through good faith before the commencement of this act, the validity of the registration of the trademark shall not be prejudiced if it is similar or identical to a well-known trademark.
Difference between Absolute and Relative Grounds:
Even though both the grounds of refusal grants the right to the registrar to refuse the registration of a trademark or a mark, there is a fine line of difference between the absolute and the relative grounds.
The absolute grounds of refusal are given under section 9 of the Trademark Act whereas, the relative grounds of refusal are given under section 11 of the Act.
The absolute grounds focus on the mark which is up for registration with the absolute terms of rejection, that means the trademark can be rejected by the registrar on the basis of not being or holding a distinctive character i.e. does not have any distinguishing feature or if any trademark consists of marks or indications which may help in the trade of the product or 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.
These grounds contemplate the mark on its own and not focus on comparing the mark with any other pre-registered mark or any well-known trademark.
These grounds focus only on the mark and do not compare the mark with other marks.
Whereas,
The relative grounds that are given under section 11 of the Act gives the right of refusal to the registrar while comparing it to the other marks.
These grounds are relative which means that the mark is seen in relation to the other trademarks.
These grounds before granting the registration checks if the trademark is unique and is not similar or identical to other marks in any way.
The main point of these grounds was to safeguard the rights of the other proprietors of other trademarks. These grounds of refusal protect the violation of rights of other trademark owners.
Without the relative grounds of refusal, it will apparently be easier for a new company to copy the trademark of an earlier registered trademark and to gain the advantage of their established goodwill.
Without these grounds, it will be easier for a person to deceive the public to sell of their products.
Conclusion:
These grounds even though focus on the same thing i.e. the protection of rights of the other trademark owners but are very different from each other. These grounds help in maintaining the integrity of running a business properly without deceiving the public and maintaining a smooth registration process of the trademark. These grounds also help in protecting the rights of the public so they are not deceived and so that they get various options for selecting the product of their choice.
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