ES व्यापार चिह्न अधिनियम, 1999 के अन्तर्गत किन आधारों पर व्यापार चिह्न के पंजीकरण से इंकार किया जा सकता है?

 Under the Trademarks Act, 1999, the registration of a trademark can be refused on absolute and relative grounds as mentioned in Sections 9 and 11 of the Act. Below is a pointwise explanation of these grounds:

A. Absolute Grounds for Refusal (Section 9)

1. Lack of Distinctiveness

   • Trademarks that are not capable of distinguishing the goods/services of one person from another.
   • Example: Common words like "Water" for bottled water.

2. Descriptive Marks

   • Trademarks that describe the nature, quality, intended purpose, or geographical origin of the goods/services.
   • Example: "Sweet" for chocolates.

3. Customary or Generic Terms

   • Words that are commonly used in trade and have become generic.
   • Example: "Best Quality" for consumer goods.

4. Deceptive or Misleading Marks

   • Marks that can deceive the public regarding the nature, quality, or geographical origin of goods/services.
   • Example: "Organic" for non-organic products.

5. Hurtful to Religious Sentiments

   • Marks containing words or symbols that may hurt the religious sentiments of a section of people.
   • Example: Using a religious deity’s name/logo for alcohol or meat products.

6. Scandalous or Obscene Matter

   • Marks containing offensive, obscene, or scandalous words or graphics.
   • Example: Vulgar or offensive words/images.

7. Prohibited by Law

   • Trademarks that are prohibited under any law, such as the Emblems and Names (Prevention of Improper Use) Act, 1950.
   • Example: Using "National Flag" or "Mahatma Gandhi" in a trademark.

8. Shape Resulting from the Nature of Goods

   • Shapes that are essential to achieve a technical function or that result from the nature of the goods themselves.
   • Example: The basic shape of a standard screwdriver.

B. Relative Grounds for Refusal (Section 11)

1. Similarity with an Existing Trademark

   • A mark that is identical or similar to an already registered trademark and may cause confusion.
   • Example: Registering "Pepsic" for soft drinks similar to "Pepsi".

2. Likelihood of Confusion

   • A mark that creates a likelihood of confusion among consumers regarding the origin of goods/services.
   • Example: Using "McDowels" for a beverage similar to "McDowell's".

3. Well-Known Trademarks

   • A mark that is similar to a well-known trademark, even if used for unrelated goods/services.
   • Example: Registering "Nike" for electronic products.

4. Identity with a Trademark for Similar Goods/Services

   • If a proposed mark is identical to an existing registered trademark for the same or similar goods/services.
   • Example: Registering "Coca-Cola" for beverages.

5. Identity with a Trademark for Dissimilar Goods/Services (Well-Known Mark Protection)

   • If a mark is identical to a well-known mark, even for different goods/services.
   • Example: Using "Apple" for clothing (which could dilute the reputation of "Apple" in electronics).

6. Passing Off and Unfair Competition

   • If the mark is likely to be used in a manner that could mislead consumers or lead to unfair competition.
   • Example: Registering "Luxo" for soap similar to "Lux".

7. Use of Marks Prohibited Under International Treaties

   • If a mark violates agreements like the Paris Convention or TRIPS Agreement.
   • Example: Using Red Cross as a trademark.

Conclusion

The Trademarks Act, 1999 provides absolute and relative grounds for refusing registration to ensure that trademarks are unique, non-deceptive, and legally compliant. If a mark falls under any of these grounds, it may be rejected unless the applicant proves distinctiveness or acquired secondary meaning.