Trademark Intellectual Property Law

TRADEMARK &
CONDITIONS FOR
REGISTRATION
GROUP F
Kashyap Thakkar
Dhvani Gajjar
Raj Amreliya
Danishul Kanungo
INTELLECTUAL PROPERTY LAW - I
SEM - VII

WHAT IS TRADEMARK
• According to THE TRADE MARKS ACT, 1999,
Trademark is defined as follows:
• “Trade mark” means a mark capable of being
represented graphically and which is capable of
distinguishing the goods or services of one person
from those of others and may include shape of goods,
their packaging and combination of colours.

WHAT IS TRADEMARK
• A trademark in layman’s language is a visual symbol
which may be a word signature, name, device, label,
numerals or combination of colours used by one
undertaking on goods or services or other articles of
commercial nature to distinguish it from other similar
goods or services originating from a different
undertaking.

WHAT IS TRADEMARK
• The legal requirements to register a trademark under the Act
are:
• The selected mark should be capable of being
represented graphically.
• It should be capable of distinguishing the goods or
services of one undertaking from those of others.
• It should be used or proposed to be used mark in relation
to goods or services for the purpose of indicating or so as
to indicate a connection in the course of trade between the
goods or services and some person have the right to use
the mark with or without identity of that person.

CONDITIONS FOR
REGISTRATION OF
TRADEMARK

CONDITIONS OF REGISTRATION
i. The selected trademark must be able to represent
the product or brand in the paper form or
graphically.
ii. The trademark must be different in every way, which
means it must be able to differentiate its goods and
services from others.
iii. It should be used to create a connection between the
people and the goods or services the person is
offering. It means trademarks are used to promote
the business.

WHEN IS A TRADEMARK DISTINCTIVE?
• Distinctive trademarks are:
I. Different from other marks used to describe similar
goods and services.
II. Ones which include a visual description of the type of
goods or service.
III. Recognised as identifying the source of the goods or
service.

IMPORTANCE OF DISTINCTIVENESS
• The more distinctive a trademark design is,
the easier it is to register that trademark.
The higher up in the distinctiveness
spectrum a trademark is, the more
protection that it receives under the law.
Having a trademark high in the spectrum
can help a company avoid the effort and
cost involved in fighting patent infringement
issues.

CONDITIONS OF REGISTRATION
• There are certain conditions or requirements to be fulfilled before filing a
trademark application in India. They are:
i. The name, nationality, and address of the applicant are necessary. If
there is any sort of partnership, details of every partner must be
submitted.
ii. Details of the goods and services linked with the registration must be
submitted.
iii. A soft copy of the trademark for registration.
iv. Translation of all the non-English words is required.
v. Date of the initial use of the trademark.
vi. If the application submitted is to claim authority for an earlier-filed
application, details of that application are also required.

WHO CAN APPLY FOR A TRADEMARK?
i. Any person who shows the authority on the trademark
can apply for the registration of its mark for goods as
well as services.
ii. Any person whose business lies under the jurisdiction
of India can apply for registration of a trademark.
iii. In case, the principal place of business is outside India,
the lawyer associated with the proprietor present in
India can file an application in the trademark office.
iv. In the case of a company, anyone can apply the
application but it should be in the company’s benefit.

GROUNDS OF
REFUSAL OF
REGISTRATION

ABSOLUTE GROUNDS FOR REFUSAL
• (1) The trade marks—
(a) which are devoid (lacking) 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 (specify) 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;
(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,
• shall not be registered:

• (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; or
(b) the shape of goods which is necessary to obtain a
technical result; or
(c) the shape which gives substantial value to the
goods.

LIMITATION AS TO COLOUR
• So far as a trade mark is registered without limitation
of colour, it shall be deemed to be registered for all
colours.
• A trade mark may be limited wholly or in part to any
combination of colours and any such limitation shall
be taken into consideration by the tribunal having to
decide on the distinctive character of the trade mark.

RELATIVE GROUNDS FOR REFUSAL
• (1) a trade mark shall not be registered if, because
of—
• its similarity to an earlier trade mark and the identity
or similarity of the goods or services covered by the
trade mark,
• If there exists a likelihood of confusion on the part of
the public, which includes the likelihood of
association with the earlier trade mark, the
registration may be refused.

RELATIVE GROUNDS FOR REFUSAL
• (2) A trade mark which—
(a) is identical with or similar to an earlier trade mark; and
(b) is 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.

CONSENT OF PROPRIETOR
• Nothing in this section shall prevent the registration of
a trade mark where the proprietor of the earlier trade
mark or other earlier right consents to the
registration, and in such case the Registrar may
register the mark under special circumstances under
section 12.

USE OF NAMES AND REPRESENTATIONS OF
LIVING PERSONS OR PERSONS RECENTLY
DEAD
• Where an application falsely suggests a connection
with any living person, or a person whose death took
place within twenty years prior to application, the
Registrar may, before he proceeds with the
application, require the applicant to furnish him with
the consent in writing of such living person or the
legal representative of the deceased person to the
connection appearing on the trade mark, and may
refuse to proceed with the application unless the
applicant furnishes the Registrar with such consent.

BIBLIOGRAPHY
• The Trademarks Act, 1999
• http://legislative.gov.in/sites/default/files/A1999-47_0.pdf
• https://blog.ipleaders.in/need-know-process-trademark-
registration/#Conditions_for_Registering_a_Trademark_in_Indi
a

Trademark Intellectual Property Law

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