Trademark objection under section 9 and 11

Section 9 The absolute grounds of refusal

Section 11 The Relative grounds for refusal of registration

Trademarks are the marks which are used to identify goods or services provided by a particular business as a company or an  individual. They are as unique as impacting an image/trust on consumers like :- McDonald   – a sign with a m 

alphabet  in yellow colour, Audi

 – a sign with 4 connected circle rings.  These marks always help the consumer to identify the original product and the manufacturer easily. To ensure that signs are not used to misrepresent products or confuse consumers, service takers, they are protected by law. A trademark needs to be registered to ensure legal protection to your business . Trademark registration will protect the marker from illegal use and will give the trademark owner all legal rights over the mark against other parties .

Now, once you filed an application for registration of your trademark. Then , the Registrar will examined the application ,where in a search is conducted on the basis of  earlier registered or applied  trademarks for registration, the main purpose to examination is to know that  applied trademark name is matching or  not to already applied trademark The status of the trademark application can be checked on by entering the application number that is also mentioned on the receipt of your trademark application. It is always recommended to check the status of the mark at least once in a month .

After the examination process, the registrar will decide whether the trademark application can be accepted or objected to . If  it’s not accepted, the registrar will mark the trademark application as objected with reasons. The examination report will be communicated to the applicant or authorized  trademark agent for submitting a reply to the examination report within given time-duration.

Trademark Registration Process :

Stage 1: Trademark Application form submission.

Stage 2: Formality Check / Vienna Codification

Stage 3: Issuance of trademark Examination Report  / Objection / Hearing

Stage 4: Journal Publication of  the Trademark / Advertise / Opposition / Hearing

Stage 5: Registration of Trademark.

 The Trademark examination report shall contain the reason for objection. The applicant is required to file his reply according to reason of objection within 30 days from the examination report as time already mentioned . Generally, this examination report will be communicated to the trademark agent and also sent on mail id which is given in trademark form for action.

In the trademark examination report ,the applicant will be directed to file a reply to the objection within 30 days of the examination report. If the reply to the examination report found satisfactory, the Registrar will proceed to accept the application and will advertise same on Trademark Journal.

Generally , the Registrar of Trademark issue objections under Section 9 and Section 11 of the Trademarks Act, 1999 as  it discussed  below:

Section 9 Trade Marks Act, 1999:  The absolute grounds of refusal .

Here we will discuss about Section 9(1) to (3) of Trade Marks Act, 1999,

Section 9(1) prohibits/ restrain the registration of those trademarks:

  • When a mark is not capable of differentiate  the goods or services of one person from those of another person;
  • When a mark  consist exclusively of indications or  marks which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or rendering of the service or  the time of production of the goods or other characteristics of the goods or services; or
  • When a mark  consists exclusively of  indications or  marks which have become customary in the current language or in the bonafide and established practice of the trade.

Section 9(2) states that a mark disallow to be registered as a trademark if —

  • If it is of such nature as to deceive the public or create confusion;
  • If it contains matter likely to hurt the religious emotions and propensity of any class or section of the citizens of India;
  • If it contains obscene matter  or scandalous ;
  • If it  uses words which are prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.

Section 9(3) A mark disallow to be registered as a trademark if it consists exclusively of—

  •  If the shape of goods which results from the nature of the goods themselves; or
  • If the shape of goods which is necessary to get a technical result; or
  • If the shape which gives significant value to the goods.

Section 11 Trade Marks Act, 1999: The Relative grounds for refusal of registration.

If  the mark is identical with or similar to earlier marks in respect of identical or similar description of goods or services and because of such identity or similarity can create confusion on the part of the consumers, service taker.

   In other words, if similar trademark exist in the Trademark register that trademark        shall not be registered.

The term “earlier trade mark” means a registered trademark or an application which has a date of application    earlier than the applied trademark .

How to respond to an objection?

After get notice of trademark examination report , reply must be submitted within one month from the date of receipt of the examination report. In case of failure to submission  reply against objection within one month will change the status of the application to Abandoned.

Consequences of non-filing of Reply

In case of failure to submission  reply against objection within one month will change the status of the application to Abandoned and the applicant has to file a fresh application for getting the Trademark.

Documents Required

A formal reply to the examination report is required to be submitted with some relevant  statements , case studies and evidences as to why the the application is to be accepted.
Following are the documents required.

1. Duly signed Power of Attorney

2. Reply statement to Examination Report

3. Documentary proof of Trademark in commercial use which includes invoices, and communications, visiting cards, screenshots of websites, social media page, License and registrations, financial statements brochures, and all other evidences where trademark is being used.

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