Chapter XIII - Miscellaneous
Section 133
Section 133: Preliminary distinctiveness advice
A prospective applicant may seek the Registrar’s preliminary view on whether a mark appears distinctive.
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Need advice on Section 133?
This article is for general information. Refer to the Trade Marks Act, 1999 official text for the official provisions. If you need professional advice for your situation, contact Bizeneed.
Statutory text
Bare law
(1) The Registrar may, on application made to him in the prescribed manner by any person who proposes to apply for the registration of a trade mark, give advice as to whether the trade mark appears to him prima facie to be distinctive.
(2) If, on an application for the registration of a trade mark as to which the Registrar has given advice as aforesaid in the affirmative made within three months after the advice was given, the Registrar, after further investigation or consideration, gives notice, to the applicant of objection on the ground that the trade mark is not distinctive, the applicant shall be entitled, on giving notice of withdrawal of the application within the prescribed period, to have repaid to him any fee paid on the filing of the application.
Rule and business relevance
The advice is prima facie. If favourable advice is followed by an application within three months, but further examination produces a distinctiveness objection, the section permits repayment of the filing fee when withdrawal notice is given within the prescribed period.
Limits and related provisions
Preliminary advice is not a registration guarantee or clearance against all earlier rights. The fee-repayment route depends on its exact timing and subject-matter conditions.
Hypothetical business example
Hypothetical example: An applicant receives favourable advice, files within three months and later receives a distinctiveness objection. It checks whether timely withdrawal qualifies for the specified refund.
Practical decision flow
Use the prescribed preliminary-advice process.
If relying on the advice, record the three-month application window.
Assess any later objection and the prescribed withdrawal conditions.
Applying the Act and current procedure
Read the statutory rule together with the applicable Trade Marks Rules, current Registry directions and the facts of the particular mark. Forms, fees and procedural requirements should be checked against their current official source before filing.
Practical checklist
Do
- Use the prescribed preliminary-advice process.
- If relying on the advice, record the three-month application window.
- Assess any later objection and the prescribed withdrawal conditions.
Avoid
- Preliminary advice is not a registration guarantee or clearance against all earlier rights. The fee-repayment route depends on its exact timing and subject-matter conditions.
Glossary
- Prima facie advice
- A preliminary impression, not a final registration decision.
- Conditional repayment
- The filing-fee repayment available under subsection (2).
Frequently asked questions
Does favourable advice guarantee registration?
No. Further investigation or consideration is expressly contemplated.
What filing interval matters for repayment?
The registration application must have been made within three months after the advice.
Is every later objection covered?
The provision specifically addresses an objection that the mark is not distinctive.
Need help applying this provision to your situation?
Contact BizeneedLast updated 10 October 2026