Trademark Objection
After filing the trademark application, it is necessary to monitor its progress in case any objection is raised or not to your trademark's registration on the portal. Let’s understand how to deal with such trademark objections in India.
What is trademark objection in India?
After filing the trademark application one may receive an objection if a trademark examiner discovers any minor errors, discrepancies, objectionable grounds, need some changes after filing for the trademark, or any other errors. And in this situation, the applicant needs to file a reply with the Registrar. The applicant may receive an objection due to the grounds as mentioned below:- The mark is devoid of any distinguishing features or contains indications that may be used in commerce to denote quality, quantity, intended function, values, geographical origin, or production time.
- The trademark filed has the potential to mislead or confuse the public. This includes any mark that can be linked to a previously registered trademark or that has become commonplace or geographical.
- The trademark contains material that may offend the religious feelings of any class or group of people.
- If any emblem and names are used in trademarks which are prohibited under the Emblem and Names Act of 1950.
- If any of the documents or details of the applicant are missing.
- Trademarks consist of markings on the shape of items which are results of products' nature.
- Trademarks consist of markings on the shape of items that are used to achieve a technological outcome.
Absolute grounds for refusal of registration
The grounds for registration rejection are mentioned under Section 9 of the Trademark Act,1999. Any trademark that falls under one of the grounds mentioned in this section is ineligible for registration. The below are the absolute reasons for denying registration:- Trademarks that don't have any distinguishing characteristics or distinctive character. The term "distinctive character" refers to logos that are incapable of separating one person's products or services from those of another.
- Trademarks that only contain markings or signs that are used in retail to define the type, quality, quantity, expected use, values, or geographical origin of products or services provided.
- Trademarks that only contain markings or symbols that have become customary in the current language or the industry's existing activities
- Trademarks are of a kind that deceives or confuses the general public.
EXCEPTION-
The exception is that if the trademark has gained a distinguishing character as a result of the use or is a well-known trademark before filing for approval, it will not be refused for registration in that case.Relative Grounds For Refusal Of Registration
Relative reasons for registration refusal are set out in Section 11 of the Trademark Act,1999. Exceptions to the grounds of refusal are mentioned in this section. The trademarks under section 11 can be registered if the exceptions are followed.The following reasons for rejection are mentioned in Section 11(1):
- Trademarks that cause consumer confusion because they are similar to the previous trademarks on products or services.
- Trademarks that cause consumer confusion because they are identical to an older equivalent trademark on products or services.
- The Registrar of Trademarks can approve registration if there is a practical and positive use of the trademark. The following reasons for rejection are mentioned in Section 11(2):
- Trademarks that will take undue advantage of an earlier well-known trademark in India that is equivalent or identical.
- Trademarks that may be harmful to the distinctive character or repute of an earlier well-known trademark in India.
The following reasons for rejection are mentioned in Section 11(3):
- The law of passing off, which protects an unregistered trademark used in the conduct of business, is expected to prohibit the use of the trademark.
- The law of copyright would prohibit the use of the trademark.
Which names are not available for trademark registration?
Trademarks containing specific names are not allowed to be registered under Sections 13 and 14 of the Act. Trademarks containing any particular chemical element or chemical compound about a chemical substance or preparation are ineligible for registration.The Registrar may refuse to register trademarks that falsely indicate a correlation with a living person unless the permission of that living person is obtained. Similarly, trademarks that wrongly claim a correlation with any deceased person within twenty years of applying for registration will be rejected by the Registrar unless authorized representatives of the deceased person agree.
To simplify, it is important to evaluate trademarks for the existence of any prohibitions listed under Sections 9 and 11, 13 and 14 of the Trademarks Act, 1999, to prevent problems during the registration process.
Required Documents
| Acceptable Document | Document Type | Additional Details |
|---|---|---|
| - | - | - |
FAQs
You Ask, We Answer
The permissible amendments under the Trademarks Act are , Amendment/correction in the name, address or description of the registered proprietor, Cancel the entry of a trademark on the Register, Amendment of user date and, Amendment in the specification of goods and/or services.
The Act provides for rectification of the register. Any person, aggrieved by an entry wrongly made or wrongly remaining on the register of trademark, is entitled to file a petition for: o Rectification of the Trademark in the Register o Cancellation of Registration or removal of the registered mark.
Any person who is aggrieved by the absence or omission from the register of any entry.
An application can be filed before the Trademarks Registry where the application for its registration was filed or at the Appellate Board.
Yes , you are allowed as per the trademark law in India to correct an application only for minor changes and not for changes that affect the identity of the trademark. The amendment can be made before or after registration of the trademark application.
Following documents are required for filing a rectification of trademark: 1. An application is to be made in triplicate on the requisite form 2. A statement of case, setting out the nature of the Applicant’s interest, facts upon which the case is based and the relief that is sought.
Cancellation of a trademark is a process in when a person seeks to remove a registered trademark from the register. This can be done: – o If it is proved that the trademark was registered without any bona fide intention of use by the owner o If the trademark hasn’t been used for a continuous period of five (5) years from the date of registration of the mark.
The Tribunal i.e. the Registrar or the Appellate Board, after giving a notice as well as an opportunity of being heard to the concerned parties, may either cancel, vary, add or remove the entry in question.
Filing a rectification can be done on the following grounds: o Contravention or failure to observe a condition entered in the Register o The Register suffers from the absence or omission of an entry e.g. a disclaimer, a condition or a limitation on the registered mark. o The entry made in the Register was made without any sufficient cause i.e. registration was obtained by fraud or misrepresentation of facts or the mark registered was similar to an already registered mark, etc. o Error or defect in any entry made in the Register. o The entered mark was wrongly remaining on the Register. o The renewal fee has not been paid.
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