The word, trademark, means words lawfully enlisted or set up by use as speaking to an organization or item. At the point when the rivalry is spurting everywhere in the world, it turns out to be relatively basic to separate our products or administrations from others show on the planet. India has developed as the third biggest base for new businesses on the planet, as indicated by the NASSCOM Start-Up Ecosystem Report, 2015. The struggle to remain in the market makes one wary about his items. Trademark idea to Indians might be very new, however, it is intriguing to realize that around 3000 years back, Indian specialists engraved their mark on their imaginative manifestations. With the approach of globalization and interconnectedness, trademark laws have attached their hold over the Indians. In this article, we will learn about what cannot be an Indian Trademark.

Trademark Act

The main enactment as for trademarks was the Trade Marks Act, 1940 which was like the UK Trade Marks Act, 1938. As time slipped by, it was seen that the demonstration was bumbling to meet the necessities of the general public. Therefore, the Trade and Merchandise Marks Act, 1958 institutes which were at long last cancel by the Trade Marks Act, 1999. This demonstration was an inconsistency with the arrangements of the TRIPS. It gives a stage to the enlistment of trademarks of merchandise and enterprises, along these lines, furnishing the solely distinguishing the item with its producer and in this manner likewise giving the maker alleviation if there should be an occurrence of the encroachment of his trademark.

Trademarks, in India, have been governed by the principles of the common law. To utilize the check whether with or with no sign of the personality of that individual and incorporates a confirmation exchange stamp or following mark;

Certification mark

This mark generally finds out the origin, material, quality, and characteristics of goods and services. Which are offered by a manufacturer/dealer from his competitors? They are also used to assess the worth of labor in producing goods or services.

Collective mark

These marks metamorphose the members of a group, which can be a cooperative organization or an association.

What cannot be an Indian Trademark

The Trademarks Act, 1999, sections 9 and 11 provide the accurate reason for refusing a trademark. Section 9 states the real basis and section 11 states with the relative facts for the denial. Mentioned below are the grounds for refusal in India-

Devoid of distinctive nature

The criteria of becoming distinct have intercept widely in the Indian law. The characteristics of an item or service which isn’t of a particular sort cannot be a trademark. The enlistment of descriptive trademarks is denied under Section 9(1)(b) of the Trade Marks Act, 1999 except if they are particular.

Names/ Surnames

Names or surnames can’t be utilized as an Indian Trademark on the off chance that they don’t have a particular character. Additionally, if such names are taken in use deceptively, they would not be given the status of a trademark. For instance, in Prathiba M. Singh v Singh and Associates 2014 (60) PTC 257 (Del), the court watched that “‘Singh’ is an extremely normal surname, and no one can have an imposing business model over it.”

Numerical

Numbers can’t be said to selectiveness to be utilized as a trademark, as such. In specific cases, the courts in India have inferred that numbers don’t have an unmistakable nature connected to them, along these lines, not fitting the bill to be a trademark. On account of Radico Khaitan Ltd v. Carlsberg India Pvt Ltd, the Delhi High Court watched that “a numeral can’t be said to have an unmistakable character.”

Geographical area

Geographical areas can’t be taken as trademarks. In Imperial Tobacco Company of India Ltd v. Recorder of Trademarks, AIR 1968 Cal 582, the Calcutta High Court held that “the trademark “Simla” with the mark is composite in character. It is a notable hill– station of India. Its topographical implication is, along these lines, plain and unequivocal.”

Colour

The Trademarks Act does not exactly refuse the usage of color. But Indian Registry and Courts do not advice the idea to use colors as trademarks. The reasons behind that are the available stock will deplete and the courts will pile up with cases.

Sound

Musical notes in the form of musical notations are acceptable as the Indian trademarks. The condition being noises such as the barking of a dog cannot be a trademark.

Smell

The smell cannot register as an Indian trademark. It is difficult to distinguish between different smells.

Scandalous Matter

If any word is to trademark, it should not be scandalous or obscene, in any manner.

Shape of goods

Section 9(3) of the Trade Marks Act, 1999 states-

A mark shall not register as a trademark if it consists exclusively of the shape of which—

  • results from the nature of the goods themselves; or
  • is necessary to obtain a technical result; or
  • gives substantial value to the goods.

For example, the shape of Vanilla ice cream resulting in the nature of the product itself cannot complete trademark registration.

Identical/ similar products

Any mark which is the same as that of the earlier one cannot use as a trademark for another product. For example, TATA motors cannot assign as a trademark again. There should be no unfair advantage.

Contrary to law

If a law of passing off is protecting an unregistered trademark, such marks cannot use by other persons as trademarks.

Related Post: Copyright law for Fashion Designers In India

Conclusion

Trademark has given selectiveness over the work. Still, India is yet to investigate in this field, to manage the rising advancements each following day. In India, for the enrollment of trademarks, the NICE characterization of merchandise and enterprises are taken after which groups items into 45 classes. At the point when an item or administration needs a trademark, it should fit in one of the classes. In this manner, we see that the items and administrations have the limit to such classes by the Government.

It isn’t important to have an enroll Indian trademark, however, the earlier use of the trademark is vital. The issue is that no one could spare rights for items and administrations which would enhance later on, particularly in India. Trademarks being a self-serving help to the general public ought to be accessible on such stages.

If you want to Apply for Trademark Registration, you can go with Apply Trademark.