Trademark is an important tool for businesses. It is a unique name, logo or design which helps in the identification of products and services and allows consumers to distinguish between different products and services. Trademark creates an image and a brand name for the business. Thus, it is crucial for your business to obtain a registered trademark. The first step for registration of a trademark is to choose a logo or a name which is appropriate for your business. There are certain names and logos that are prohibited by law from being used as trademarks. The prohibition of such trademarks is governed under the Trade Marks Act 1999 and the Trade Marks Rules 2022. The prohibitions have been listed below:
Relative grounds for refusal of registration trademark:
Section 11 of the Trade Marks Act 1999, prohibits registration of trademarks which are identical or similar to other registered trade marks because it creates the possibility of confusion. Identical trademarks are those which are reproduced without any modifications or alterations while similar trademarks are those which are deceptively similar and likely to cause confusion.
Absolute grounds for prohibition of registration of trademark:
Section 9 of the Trade Marks Act, 1999 lays down the following absolute grounds on which registration of a trademark is prohibited.
- Devoid of distinctive character- Distinctiveness is the ability to be distinguished from other goods or services. A trademark which is devoid of such character cannot be registered. Direct reference to the character or quality of goods and services is not termed as distinct or distinguishable. The name or logo shall also not consist of common name, surnames, names of places, numerical values, geometrical indications etc. the fundamental principle behind this prohibition is to prevent traders from obtaining monopoly in the use of words as trademarks because other traders may wish to use the mark to designate characteristics to their goods and services.
- Kind, quality, quantity etc.- trademarks which exclusively consist of names or logos that designate the quality, kind, quantity, value, time of production of goods or other characteristics of goods and services are prohibited. Kind may include the name of goods or services which indicates its size or type like new or old, large or small. Even words such as good or best are objectionable. All traders are equally free to define such characteristics. Words which directly refer to the intended purpose of the goods or services such as ‘kettle clean’ which is used to clean kettles, are prohibited. Also, words which indicate merit, importance or ‘value’ of goods and services are not allowed to be used.
- Customary in current language- Section 9(1)(c) of the Trade Marks Act,1999 prohibits use of symbols or words which have become customary in the current language or in the bona fide and established practices of the trade. When a mark is of common use in the trade, it ceases to be a trademark of single source. For example using grapes as a trademark of wine or use of certain flowers as a trademark for ‘agarbathis’ is prohibited.
Prohibition of registration of Geographical Indication as trademark:
Registration of geographical indication as a trademark is strictly prohibited according to Section 25 of the Geographical Indication Act. The prohibition is intended to prevent misappropriation of public property which may lead to confusion in the market. Names of places with less than 5000 population can be used as trademarks, however, names of location with larger areas can not be used as trademarks
Prohibition of Olympic Symbol or Word:
.An Olympic Symbol or Word, The Olympic Motto and the words Olympic, Olympiad or Olympians are prohibited from being registered as trademarks except under the authority of the Olympic Committee. All those marks which are remotely similar to the Olympic Symbol or Motto are likely to create an impression of association with the Olympics. Hence, such symbols or names are strictly prohibited.
Prohibition of marks likely to hurt religious susceptibilities:
A business name or logo that is likely to hurt the religious sentiments of any class or sections of citizens of India is prohibited from being used as a trademark. Even though usage of pictures of Gods and Goddesses as a trademark is a common practice in India, it does not hurt religious feelings of people. However, using holy symbols or names for particular goods may hurt religious sentiments of people. For example, certain footwear companies using the picture of God as a trademark will hurt religious susceptibilities and are therefore prohibited. Use of religious symbols such as OM or the sign of Jesus are prohibited from being used as trademarks.
Prohibition of name or logo containing scandalous or obscene matter:
A business name or logo that is to be used as a trademark shall not comprise of scandalous or obscene matter. Logos or names that may offend the accepted principles of morality are termed as scandalous and are prohibited from being registered as a trademark. Marks that may induce public disorder or provoke criminal and offensive behaviour are not allowed to be registered. A vulgar mark on any goods is not acceptable as a trademark.
Emblems and Names (Prevention of Improper Use) Act, 1950:
The Emblems and Names (Prevention of Improper Use) Act 1950, prohibits certain names or logos or marks to be registered as trademarks without the prior permission of the Central or the State Government. Section 9 (2)(d) of the Trade Marks Act, 1999 does not allow the registration of a name or symbol which is prohibited under The Emblems and Names (Prevention of Improper Use) Act 1950. Registration of a name or logo that bears any emblem or is in contravention of Section 3 of the Emblems Act is strictly prohibited. The schedules of the Emblem Act specifies the prohibited name or emblem. Item 7 of the Schedule contains certain guidelines which express that the following names will not be registered as trademarks-
- Any name identical with the name of any society or corporation or a local body that has been set up by the Government of India is prohibited
- Any name that gives the impression of the patronage of Central or State Government such as Indian Council of Agricultural Research (ICAR) is prohibited.
- Any name that nearly resembles the name of a body corporation or local authority set up by Government For example, ‘Indian Institute of Mass Communication’ is an autonomous body set up under the Ministry of Communication.
Following words and symbols have been refused to be registered as trademarks by the Central Government under Emblems Act:
- Government symbols and names
Name, emblem or official seal of both Central and State Government is prohibited from being used as a trademark. Any name or symbol used by a government department is also prohibited.
National Flag of India or any name that suggests the patronage of the Central or State Government of India or any local body or corporation under the control of the Government of India are prohibited from being used as business names or logos.
Name, emblem or official seal of President, Governor or Republic of the Union of India and the name or pictorial representation of Rashtrapati Bhavan or Rashtrapati can not be used as a trademark.
Using the name of the Parliament of any State Legislature, Courts, Secretariat of Central and State Governments or any other government office as a trademark is not allowed.
Also, the words “Ashok Chakra” or “Dharma Chakra” or pictorial representation of Ashok Chakra or any other colourable imitation are prohibitory trademarks. Words ‘National’ and ‘Panchsheel’ are also prohibited.
- Symbol of political party- Representation of symbol or logo any political party is prohibited from being used as a trademark.
- Organization- Name or symbol of the below listed organizations can not be registered as the name or logo of a business.
- Name or emblem of the ‘United Nations Organization’
- Name and emblem of the ‘World Health Organization’.
- Name or emblem of the ‘United Nations Educational, Scientific and Cultural Organization’.
- Name or emblem of the ‘International Civil Aviation Organization’.
- International Criminal Police Organization or Interpol.
- World Meteorological Organization.
- Tuberculosis Association of India.
- International Atomic Agency.
- Important leaders, personalities and religious deities
Usage of names and pictures of religious deities such as Sikh Gurus, viz. Guru Nanak, Guru Angad, Guru Amar das, Guru Ram Das, Guru Arjun dev, Guru Hargobind, guru Har Raj, Guru Har Krishnan, Guru Teg Bahadur and Guru Gobind Singh, name or picture of the deity of Lord Venkateswara and Balaji, name or picture of Shree Sai Baba or words ‘Sri Ramakrishna, Swami Vivekanada’ as trademarks are prohibitory in nature.
Name and picture of Chhatrapati Shivaji Maharaj is a prohibited business name or logo.
- Chemical Compounds
Law prohibits registration of any word as a trademark which is a commonly used name of a chemical element or compound and is declared so by the World Health Organization. A trademark should also not be deceptively similar to a chemical compound.
Conclusion
Trademarks helps the traders to create a brand name for their product. However, restrictions on the use of particular words or logos as trademarks is placed by law to prevent Monopoly of goods and services and protect the customers from being deceived.
