What cannot be Registered as a Trademark in India?

The term, trademark, denotes terms legally registered as representing a business or product or produced through use. It is almost necessary to distinguish our products or services from those present in the world as competition spurts in every nook and cranny of the world. It can be tricky to come up with a trademark that is unique and appropriate as well as important to your business goals with growing competition in the business environment. First, though, what is a trademark? A trademark is a distinctive name, initials or emblem that a company represents. Read through the following list if you have been searching for information on patent law in India to understand what does not apply for trademark registration. The following applies as grounds for denying a trademark, which means that a corporation cannot use the following as a symbol, emblem or name of a trademark.

What cannot be Registered as a Trademark in India?

The term, trademark, denotes terms legally registered as representing a business or product or produced through use. It is almost necessary to distinguish our products or services from those present in the world as competition spurts in every nook and cranny of the world.

It can be tricky to come up with a trademark that is unique and appropriate as well as important to your business goals with growing competition in the business environment. First, though, what is a trademark? A trademark is a distinctive name, initials, or emblem that a company represents. Read through the following list if you have been searching for information on patent law in India to understand what does not apply for trademark registration. The following applies as grounds for denying a trademark, which means that a corporation cannot use the following as a symbol, emblem, or name of a trademark.

Know more about what is a trademark and its benefits, see the video below-

 

 

What cannot be a trademark?

  1. Devoid of characteristic nature

In Indian law, the requirement of being distinct has been narrowly interpreted. A trademark of a product or service that is not unique in nature does not constitute a trademark. Unless they are distinctive, the registration of descriptive trademarks is forbidden under Section 9(1) (b) of the Trade Marks Act, 1999.

  1. Names/surnames

Names or surnames cannot be used in India as a trademark unless they have a distinctive character. Also, they would not be granted the status of a trademark if those names were used dishonestly.

  1. Color

While the Trademarks Act of 1999 does not forbid the use of colors as a trademark, the threat of 'color deprivation' has led the Indian Registry and Courts to decline color use as a trademark, leading to a pending pile of disputes in courts. It is important to note that a brand's color is not identical to a color label. For instance, the purple color of Cadbury has been protected only for chocolate products by a patent and can be used by other companies.

  1. Numerical

Numbers should not, per se, be said to be solely used as a trademark. In some cases, the courts in India have concluded that the numbers attached to them do not have a distinctive nature, and therefore do not qualify as a trademark. Numerals in India do not apply for a trademark. They are disqualified on the basis that they do not hold the most significant aspect of a trademark, a distinctive character.

  1. Geographical location

It is not possible to use the name of a place, city, or any other geographical location for trademark registration. If we look at the case of Imperial Tobacco Company of India Ltd. vs. Registrar of Trademarks (1968), we find that the Calcutta High Court turned down the use of "Shimla" as a trademark as it is a common hill station in India for being composite in character.

  1. Sound

'Factual Distinctiveness' is a pre-requisite that needs to be demonstrated before brand registration can be used for a specific tone. Factual distinctiveness implies, in relation to the product or service, the immediate recall value of sound. Metro Goldwyn Mayer (MGMLion)'s Roar is a classic example of a sound label, for example.

Musical notes are recognized as trademarks in India in the form of musical notations, but noises such as dog barking may not be a trademark.

  1. Smell

Since different fragrances are not easily distinguishable and subjective in nature, they are not eligible for a trademark.

  1. Shape of goods

In the Trade Marks Act, 1999, Section 9(3) notes—

A trademark shall not be licensed as a trademark if it comprises solely of a trademark

(a) The shape of the goods resulting from the nature of the goods themselves;

(b) The shape of the goods resulting from the nature of the goods.

(c) The form of the products that are required for a technical result to be obtained; or,

(d) The shape which gives the goods substantial value.

The form of Vanilla ice cream, for example, which was the consequence of the design of the product itself, was not registered as a trademark.

  1. Deceitful

To the public, a trademark should not be deceitful. If, for example, a company starts producing biscuits under the name Parle-J, it will be a violation of Parle-right, G's since it is highly misleading.

  1. Injurious to religious feelings

They would not be treated as trademarks if such marks become disrespectful to a person's religious feelings.

In the case of Lal Babu Priyadarshi v. Amrit Pal Singh (Civil Appeal No. 2138 of 2006, Supreme Court), the appellant demanded that the label 'Ramayana' be registered with a crown device in relation to sticks of incense and perfumery. The court observed that "no individual can claim the name of a holy text as a trademark."

Case laws

  • The court found that 'Singh' is a very common surname, and no one can have a monopoly over it, Since Singh is a very common surname, a specific person may not reserve it for a trademark." in Prathiba M. Singh v Singh and Associates 2014 (60) PTC 257 (Del).

  • "The Intellectual Property Appellate Board [IPAB] held, in the case of ELGI Ultra Industries Limited v The Assistant Registrar of Trade Marks, MANU/IC/0062/2008, that "the terms "ultra" and "perfect" are highly descriptive and laudatory. It is not possible to see them as trademarks.

 

Conclusion

A registered trademark is not required, but the prior use of the trademark is significant. The problem is that no one, especially in India, could save rights for goods and services that would be creative in the future. Trademarks should be open on certain sites to be a self-serving help to society. Patent law in India, which previously protected only tangible scientific inventions, has now been extended to business rights under the 1970 Indian Patent Act. Therefore, a brand is protected from any malpractices upon effective trademark registration.

Trademark has granted an individual exclusivity over his work, but in this area, India has yet to explore, to deal with emerging technologies every day. In India, the NICE classification of goods and services for the registration of trademarks, which classifies products into 45 classes, is followed. It should fall into one of the classes when a product or service wants a trademark. Therefore, we see that the government has restricted goods and services to certain groups.

Know what type of trademarks are there, see the video below-

 


 

BY-

Saumya Krishnani