What Cannot be Trademarked in India – Legal Sahayak

What Cannot be Trademarked in India?

What is a Trademark?

With increasing competition in the business landscape, coming up with a trademark that is both unique and acceptable as well as relevant to your business objectives can be tricky. But first, what is a trademark? A trademark is a unique name, initials or logo that represents a brand. If you’ve been looking for information on the patent law in India to understand what doesn’t qualify for trademark registration, read through the following list. The following qualify as grounds for refusing a trademark, which means a business cannot utilize the following as a trademark symbol, logo, or name.

1. Without a Distinctive Nature

Since the entire purposes of trademark registration is to distinguish between different brands, nothing generic can be trademarked. The enrollment of generic trademarks has prohibited under Section 9(1)(b) of the Trademarks Act of 1999. For instance, Apple, although a common word, gains its distinctiveness from its connection with a computer company and hence qualities for a trademark.

2. Name / Surname

Names and surnames cannot be used for trademark registration in India, especially if they are lacking in individuality and  are used fraudulently. In the Pratibha M. Singh v Singh Associates (2014) case, the court came to the conclusion that since Singh is a very common surname, it cannot be reserved for a trademark by a particular individual.

3. Colour

Though the Trademarks Act or 1999 does not prohibit the use of colours as a trademark, the possibility of “colour deprivation”, leading to a pending pile of disputes in courts, has led the Indian Registry and Courts to decline colour usage as a trademark. It’s important to remember that the colour of a brand is not similar to a colour trademark. For example, Cadbury’s purple colour has been protected by a trademark only for chocolate products and can be used by other businesses.

4. Number

Numerals do not qualify for a trademark in India. They are disqualified on the grounds that they do not possess a distinctive character, which is the most important feature of a trademark.

5. Sound

‘Factual Distinctiveness’ is a pre-requisite that needs to be proved before a particular sound can be used for brand registration. Factual distinctiveness means the immediate recall value of sound with respect to the product or service. For instance, Metro Goldwyn Mayer (MGM)’s Lion Roar is a classic example of a sound mark.

6. Geographical Location

The name of a town, city or any other geographical location cannot be used for trademark registration. If we look into the case of Imperial Tobacco Company of India Ltd. vs. Registrar of Trademark (1968), we find that the Calcutta High Court turned down the usage of “Simla” as a trademark for being composite in character as it is a popular hill station in India.

7. Smell

Since different scents are not easily distinguishable and are also subjective in nature, they cannot qualify for a trademark.

The patent law in India, which earlier covered only tangible scientific inventions, has now been extended to the protection of businesses as well, under the Indian Patent Act of 1970. Therefore, on successful trademark registration, a brand is protected against any malpractices. If you’re looking for expert trademark registration services in India, sign up for a free consultation with Legal Sahayak.