Trademark Objection Reply
A trademark means a recognizable phrase, word, or symbol which denotes a specific product and protects it legally from being copied by other similar product vendors in the market. Trademarks are basically used to identify products and safeguard them from infringements. It can be a logo, slogan, or even a name that can be trademarked in India. Trademark is governed by the Trademark Act, 1999 which has laid down various provisions related to trademark. Trademark Registration is a lengthy process and demands legal knowledge.
In this journey of getting your trademark registered you can come across 2 main hurdles which are probably named as;
- Trademark Objections
- Trademark Oppositions
However, in this write-up, we will cover the topic of why the registrar of trademark issues the trademark Objection and what is the solution after receiving the objection in the Examination Report.
What are the various grounds on which the TM Department can raise objections?
Trademark objections are the initial stage hurdle of the registration process. Objections are raised by the registrar of trademark at the time of examining the application filed by the applicant. He identifies grounds of refusal either under Section 9 or Section 11 of the Trademarks Act 1999.
Now let’s discuss how to evade objections raised under Section 9 and Section 11 of the Act.
OBJECTIONS UNDER SECTION 9
Section 9 is considered to be absolute grounds of refusal, which means that the mark cannot be granted if an objection arises under this section.
Devoid of Distinctive character
According to this objection, the proposed mark is incapable of being distinguished from the mark which is already registered. In such cases, it is advisable to come up with abstract and unconventional names or designs that make your mark stand out from the crowd. An applicant can also go through the Trademark Journal to study various trademarks that have been accepted and understand what made those trademarks different from the others.
Indications of Trade, Quality, Kind, Quantity of Goods or Services, and so on
This objection clearly states that the proposed mark should not reflect the characteristics of goods or services produced or rendered respectively. It should also not reflect any detail pertaining to the goods or services.
The proposed mark should not contain anything which is considered to be customary in nature or something used in the current language. the applicant must avoid words or sentences used in daily communication or for that matter in trade.
The proposed mark should clearly reflect his product or service and should not create confusion for the customers with the products and services that are being offered in the market.
The proposed mark should not offend any religion. An applicant should try to avoid symbols or pictures associated with any of the religious practices of the society.
Scandalous and Obscene matter
The proposed mark should not have any obscene content that might be against morality and law which may cause public outrage in the society.
Emblems and Names Act 1950
The proposed mark should not violate the provisions of the Emblems and Names Act 1950. Ex: An applicant cannot sell the goods or render services under the national emblem of India.
OBJECTIONS under SECTION 11
Objections under Section 11 are considered as the relative grounds of refusal, under which the main ground for refusal is that the applicant’s mark is very much similar to a registered mark dealing in similar goods and services. Objections under Section 11 are not absolute in nature. In case the registrar points out any similarity to the one that has already attained the status of registered, then the onus is on the applicant to show that their mark is unique in nature, appearance, and goods or services. Once the registrar is satisfied that the mark is different from the ones that are already registered, the mark is accepted and advertised.
There are a few ways in which one can establish that the proposed mark is different from the ones that are already in the market.
- Establish a certain amount of goodwill.
- prove there is a secondary meaning to Trademark.
- Establish any color difference.
- Read your mark in its entirety.
- Claim usage over a period of time.
- Prove the distinctiveness of the proposed mark, by the difference in shape or device.
It must be noted that a reply to the Objections raised by the Registrar must be filed to the TM department within 30 days from the receipt Examination Report. Failure to do so may lead to result in the abandonment of the trademark.
If you wish to register a trademark, we at Compliance Calendar LLP have a dedicated group of professionals who are experts in the trademark registration Process in india. In case of any query feel free to reach out to us at 9988424211 or email us at email@example.com