Absolute Grounds for Refusal of Trademark Registration
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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