Section 9 of the Indian Trade Marks Act, 1999 lays down the absolute grounds for refusal of trademark registration. It specifies the categories of marks that are considered inherently incapable of being registered as trademarks. Here is an overview of Section 9:

Section 9(1)(a): Marks devoid of distinctive character:

This provision states that marks that are devoid of any distinctive character, meaning they are not capable of distinguishing the goods or services of one person from those of another, are not eligible for trademark registration. Such marks are considered common or generic.

Section 9(1)(b): Descriptive marks:

Marks that consist exclusively of marks or indications that describe the kind, quality, quantity, intended purpose, or other characteristics of the goods or services are deemed descriptive and are not registrable. Descriptive marks merely describe the nature or features of the goods or services, and they lack distinctiveness.

Section 9(1)(c): Marks customary in the current language or in the established practices of trade:

This provision states that marks that are customary in the current language or in the bona fide and established practices of the trade cannot be registered as trademarks. Such marks are considered common terms or expressions used by traders in the relevant industry.

Section 9(1)(d): Marks likely to deceive or cause confusion:

Marks that are likely to deceive the public or cause confusion due to their similarity to earlier trademarks, existing trade names, well-known marks, or earlier pending applications are not eligible for registration. This provision aims to prevent the registration of marks that may mislead consumers or create confusion in the marketplace.

Section 9(2): Other marks not registrable:

Section 9(2) provides a non-exhaustive list of specific marks that are also not eligible for registration. This includes marks that are of such a nature that their use would be against the law, marks that may hurt religious susceptibilities, marks that consist of common names or geographical names, marks that are likely to deceive or cause confusion, and marks that are identical or similar to well-known marks.

It is important to note that these provisions in Section 9 are aimed at maintaining the integrity of the trademark register by ensuring that only distinctive marks capable of identifying the source of goods or services are registered.

Trademark applicants should carefully consider the provisions of Section 9 when selecting and filing for a trademark to avoid objections or refusals based on absolute grounds.

Section 9(3): Exceptions to the absolute grounds:

Section 9(3) of the Trade Marks Act, 1999 provides certain exceptions to the absolute grounds for refusal mentioned in Section 9(1). It states that a mark that is considered devoid of distinctive character, descriptive, or customary in the current language or practices of trade may still be registrable if it has acquired distinctiveness through prior use. If the applicant can demonstrate that the mark has acquired distinctiveness as a result of extensive use and has become associated with their goods or services, it may overcome the absolute grounds for refusal.

Section 9(4): Well-known trademarks:

Section 9(4) of the Act recognizes that well-known trademarks, whether registered or not in India, are protected against registration of identical or similar marks for any goods or services. This provision serves to prevent the dilution or misappropriation of the goodwill and reputation associated with well-known marks.

It is essential to understand and comply with the provisions of Section 9 when applying for trademark registration in India. Conducting a comprehensive search to assess the distinctiveness and potential objections based on absolute grounds can help applicants make informed decisions and strengthen their chances of successful registration.

Trademark applicants should also be aware that the interpretation and application of Section 9 may vary in different cases and be influenced by judicial precedents and evolving legal principles. Seeking guidance from a qualified trademark attorney or intellectual property professional can provide valuable insights and assistance in navigating the trademark registration process while ensuring compliance with the provisions of the Trade Marks Act, 1999.

Section 9(1)(e): Marks that are customary in the established practices of the trade:

This provision specifies that marks that are customary in the established practices of the trade cannot be registered as trademarks. It aims to prevent the monopolization of common trade practices or rituals by a single entity through trademark registration.

Section 9(1)(f): Functional marks:

Marks that consist exclusively of shapes that result from the nature of the goods themselves, or marks that are necessary to obtain a technical result or add substantial value to the goods, are considered functional and cannot be registered. This provision ensures that functional features or shapes remain available for use by all competitors in the industry.

Section 9(1)(g): Marks that may deceive the public:

This provision prohibits the registration of marks that are likely to deceive the public. It aims to protect consumers from misleading or deceptive trademarks that may lead them to believe certain qualities, origins, or characteristics of the goods or services that are not true.

Section 9(1)(h): Marks that contain a geographical indication:

Marks that consist of or contain a geographical indication that identifies goods or services as originating from a particular place are not registrable unless the applicant has the authorization to use that geographical indication. This provision prevents the unauthorized use of geographical indications in trademarks.

Section 9(1)(i): Marks that are against public order or morality:

Marks that are contrary to public order, morality, or offend religious sentiments cannot be registered as trademarks. This provision ensures that trademarks do not promote or endorse offensive or objectionable content.

It is important to note that the absolute grounds for refusal mentioned in Section 9 are applicable during the examination process conducted by the trademark registry. The trademark examiner assesses the trademark application against these grounds to determine whether the mark meets the requirements for registration.

Understanding Section 9 and its provisions is crucial for trademark applicants to select distinctive marks that are capable of being registered. Conducting a thorough search, seeking professional guidance, and ensuring compliance with the Trade Marks Act, 1999 can significantly increase the chances of a successful trademark registration process in India.