What is a Trademark?

WHAT CAN BE TRADEMARKED?

1. Devices:

These are marks in which there is a special layout along with the word.

For instance: 

We have this famous Adidas logo with the three stripes and word “Adidas” in it.

2. Words:

 A word can be registered as a trademark if it is capable of distinguishing the goods to which it is associated with.

For instance:

Maggie, Bournvita

3. Names:

People who have already made a name for themselves using their names in any profession or business activity, consider trademarking their original names.

For instance:

Louis Vuitton, Gucci, Harrods

4. Signatures:

A signature can also be trademarked but merely writing the name in a non-distinct manner would not do anyone any good as it is likely to be rejected on the grounds of not being capable of distinguishing company’s goods with someone else’s.

For instance:

5. Numerals:

A per act, numerals or a combination of them can also get registered.

For instance:

6. Letters:

Set of letters can be registered as a trademark.

For instance:

7. Shapes of goods:

Shapes of the products can be trademarked itself if they have acquired distinctiveness.

WHAT CANNOT BE TRADEMARKED?

 Section 9 and 11 of Trademark Act describe the restrictions for registration of a Trademark and marks which cannot get registered under the Trademark Act.

As per the prescribed sections following marks that cannot be registered as a trademark:

1. 
   

   Devoid of distinctive nature

Marks which are not capable of distinguishing the goods or services of one person from the others.

2. Exclusively of marks or indications

Marks which consist exclusively or indications may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin, and the time of production of the goods or rendering of the service or other characteristics of the goods or service.

3. Customary Marks

Marks consisting those indications that become customary in the current language or in bona-fide and established practice of the trade, shall not be registered. For example: As per custom, the word “Chef” is associated with restaurant. No restaurant would be able to get word the “chef” registered as a trademark.

4. Deceitful Marks

Marks which seem to deceive the general public or cause confusion, cannot be registered as Trademark. For example: if a person starts selling chocolates with the name “KIT-KIT” slapped on the product, it would be an infringement of the rights of “KIT-KAT” since it is quite flustering for the people.

5. Other prohibited marks

Any mark which is likely to hurt the religious susceptibilities of any class or section of the citizens of India— environs or uses any scandalously obscene content is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950 cannot be registered as a trademark.

6. Distinct restrictions for shapes:

When the shape of goods have some distinctive feature they can be registered. However, a shape cannot be registered as a trademark if it consists exclusively of:

• Shape of goods which results from the nature of goods. For instance: The shape of umbrella cannot be registered as a trademark because of its basic nature.

The premise of this clause is to keep free of exclusively of any basic shapes of goods – for the general public use.

• Shape of goods which is necessary to obtain a technical result;
• Shape which gives substantial value to the goods

7. Identical marks

A trademark shall not be registered if it is identical with an earlier trade mark and similarity of goods covered by the trademark which leads to confusion on the part of the public