The Indian Trademark Law specifically prohibits registration of certain trademarks in India. Such trademarks which are not registerable in India are those which lack distinctiveness, and which are likely to cause deception or confusion in the mind of the public/ consumer.
Besides the above, other marks which are specifically listed as non- registrable in India are as follow:
- Trade marks that are likely to hurt religious sentiments of any community;
- Trade marks that comprises any scandalous or obscene matter;
- Trade marks the use of which is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950, e.g. the Red Cross, the National Emblem, Republic etc.
- Trade marks for the shape of goods which is purely functional or necessary to obtain technical result or which gives substantial value to the goods.
- Marks which are prohibited under the International non-proprietary names
Trademark that cannot be registered or protected in India
As per section 9 (2) and 9 (3) of the Trade Marks Act, 1999 in India:
(2) A mark shall not be registered as a trade mark if ----
- it is of such nature as to deceive the public or cause confusion:
- it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;
- it comprises or contains scandalous or obscene matter;
- 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
- the shape of goods which results from the nature of the goods themselves; or
- the shape of goods which is necessary to obtain a technical result; or
- the shape which gives substantial value to the goods
The Judiciary's stance on marks not registrable in India
Few judgments which give us an insight about trademarks not registrable in India have been discussed as under:
Ravikanth Shinde v Managing Director, Gujarat Heavy Chemicals Ltd. and Ors., 2003(4)ALD400- In this case the Respondents were manufacturing 'kitchen salt' under the trademark Dandi with the pictorial representation in the background which created an impression of Mahatama Gandhi. The Andhra Pradesh High Court directed the authorities concerned under the Emblems and Names (Prevention of Improper Use) Act, 1950, to take steps in accordance with the Act to ensure that Mahatma Gandhi's picture or the name Dandi is not used for any commercial purpose.
Lal Babu Priyadarshi vs. Amritpal Singh, Civil Appeal No. 2138 Of 2006- In this case the Appellant applied for registration of the word "RAMAYAN" as a trade mark. The Court found that the photographs of Lord Rama, Sita and Lakshman were also shown in the label which is a clear indication that the Appellant is taking advantage of the Gods and Goddesses which was otherwise not permitted. The Court held that if any other word is added as suffix or prefix to the work "RAMAYAN" and the alphabets/design/length of the words is same as of the word "RAMAYAN", then the word "RAMAYAN" may lose its significance as a religious book and it may be considered for registration as a trademark. Hence, no person can claim the name of a holy or religious book as a trademark for the goods or services marketed by him.
This article can be accessed here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.