Absolute Grounds For Refusal Of Trademark Registration

A trademark registration application can be normally objected for registration under absolute grounds for refusal of trademarks or relative grounds for refusal by reason of conflict with prior trademarks and well-known mark or because it is prohibited for registration. In this article, we look at trademark objection under absolute grounds for refusal of trademark.

Absolute Grounds for Refusal

Trademarks which are not capable of distinguishing the goods/services of one person from those of another person are devoid of distinctive character and thus liable for objection under absolute grounds for refusal of trademarks. According to the Trademark Act, the following are Absolute Grounds For Refusal Of Trademark Registration:

Trademarks which are devoid of any distinctive character; that is to say, not capable of distinguishing the goods or services of one person from those of another person;
Trademarks which consist exclusively of marks or indications which may serve in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, or the time of production of goods or of rendering of services, or other characteristics of goods or service,;
Trademarks which consist exclusively of marks or indications which have become customary in the current language or in the bonafide and established practices of the trade: shall not be registered.

Distinctive Character of Trademark

One of the main reasons for absolute grounds for refusal is if the trademark lacks distinctive character. As per the Trademark Laws, the word distinctive character with respect to trademark means the mark has been adopted by the average consumer to distinguish goods with which the proprietor of the trademark is or may be connected in the course of trade, from goods in case of which no connection subsists.

Overcoming Objection under Absolute Grounds for Refusal

To overcome a trademark objection under absolute grounds for refusal, the trademark applicant can submit proof to show that the mark has acquired a distinctive character by virtue of its prior use. Some of the evidence that could be submitted in the form of affidavit include any evidence:

To show the mark must have been used by the applicant as a means of identifying the trade origin of the goods;
The effect of this use is that the relevant public(or a significant proportion thereof) have come to rely upon the mark, in the course of trade, as a means of identifying the trade origin of the goods;
If the mark is but one of a number used by the undertaking to identify the trade origin of the goods, the Trademark Officer must be satisfied that the mark applied for has, by itself has come to foster a concrete expectation amongst the relevant public that goods bearing that mark originate from, or under the control of, a single undertaking.

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Frequently Asked Questions

Common questions about Trademark Registration Refusal Grounds Analysis.

The absolute grounds for refusal of trademark registration include trademarks that are devoid of any distinctive character, trademarks that consist exclusively of marks or indications that may serve in trade to designate characteristics of goods or services, and trademarks that consist exclusively of marks or indications that have become customary in the language or trade practices.

A trademark is considered devoid of distinctive character if it is not capable of distinguishing the goods or services of one person from those of another person. In other words, if the trademark does not allow the average consumer to identify the trade origin of the goods or services, it lacks distinctive character.

To overcome an objection under absolute grounds for refusal, the trademark applicant can submit proof to show that the mark has acquired a distinctive character by virtue of its prior use. This can include evidence that the mark has been used by the applicant as a means of identifying the trade origin of the goods, and that the relevant public has come to rely upon the mark to identify the trade origin of the goods.

Distinctive character is important for trademark registration because it allows the trademark to fulfill its primary function of distinguishing the goods or services of one person from those of another. A trademark lacking distinctive character would not be able to effectively identify the trade origin of the goods or services.

Some examples of marks that may be considered devoid of distinctive character include descriptive terms related to the goods or services, geographical names, and common surnames or slogans that do not specifically identify the trade origin of the goods or services.

Yes, a trademark that is initially devoid of distinctive character can be registered later if the applicant can provide evidence that the mark has acquired a distinctive character through its use in the trade. This is known as acquired distinctiveness.

Trademarks that consist exclusively of marks or indications that have become customary in the current language or in the bonafide and established practices of the trade are considered absolute grounds for refusal. These marks are not capable of distinguishing the goods or services of one person from another, as they are commonly used in the trade or language.

An applicant can demonstrate that a mark has acquired distinctive character through use by submitting evidence such as sales figures, advertising and promotional materials, consumer surveys, and affidavits from industry experts or consumers, among others. The evidence should show that the relevant public has come to associate the mark with the applicant's goods or services.

The purpose of the absolute grounds for refusal in trademark registration is to ensure that trademarks registered are capable of distinguishing the goods or services of one person from those of another. This helps to maintain the integrity of the trademark system and prevent the registration of marks that would not serve their intended purpose.

Yes, a trademark application can be rejected solely on the basis of absolute grounds for refusal if the trademark examiner determines that the mark falls under any of the absolute grounds for refusal, such as being devoid of distinctive character, consisting of descriptive or customary marks, or being contrary to public order or morality.