Chapter II - The Register and Conditions for Registration
Section 9
Section 9: Absolute grounds for refusal
Absolute refusal grounds test the mark’s own character, content and shape, independently of a particular earlier proprietor’s claim.
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Need advice on Section 9?
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 trade marks—
(a) which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person;
(b) which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service;
(c) which consist exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade, shall not be registered:
Provided that a trade mark shall not be refused registration if before the date of application for registration it has acquired a distinctive character as a result of the use made of it or is a well-known trade mark.
(2) A mark shall not be registered as a trade mark if—
(a) it is of such nature as to deceive the public or cause confusion;
(b) it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;
(c) it comprises or contains scandalous or obscene matter;
(d) its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950).
(3) A mark shall not be registered as a trade mark if it consists exclusively of—
(a) the shape of goods which results from the nature of the goods themselves; or
(b) the shape of goods which is necessary to obtain a technical result; or
(c) the shape which gives substantial value to the goods.
Explanation.—For the purposes of this section, the nature of goods or services in relation to which the trade mark is used or proposed to be used shall not be a ground for refusal of registration.
Rule and business relevance
Subsection (1) addresses lack of distinctiveness, exclusively descriptive indications and customary trade matter, with its acquired-distinctiveness or well-known-mark proviso. Subsections (2) and (3) separately prohibit deceptive or specified objectionable matter and certain exclusively functional or value-giving shapes.
Limits and related provisions
The subsection (1) proviso is not a general cure for every prohibition in subsections (2) and (3). Evidence of acquired distinctiveness must relate to the position before the application date.
Hypothetical business example
Hypothetical example: A business seeks to register a purely descriptive product phrase. It assesses subsection (1) and any pre-application distinctiveness evidence, while separately checking deceptive content and other grounds.
Practical decision flow
Analyse distinctiveness, descriptiveness and customary usage.
Check the separate content and shape prohibitions.
If relying on acquired distinctiveness, assemble evidence predating the application.
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
- Analyse distinctiveness, descriptiveness and customary usage.
- Check the separate content and shape prohibitions.
- If relying on acquired distinctiveness, assemble evidence predating the application.
Avoid
- The subsection (1) proviso is not a general cure for every prohibition in subsections (2) and (3). Evidence of acquired distinctiveness must relate to the position before the application date.
Glossary
- Absolute grounds
- Refusal grounds concerning the mark itself under this provision.
- Acquired distinctiveness
- Distinctive character obtained through use before the application, as stated in the proviso.
Frequently asked questions
Can use evidence cure every refusal ground?
No. The proviso is attached to subsection (1); the separate prohibitions must be considered.
Are all product shapes registrable?
No. Subsection (3) identifies excluded exclusively constituted shapes.
Is the nature of the goods itself a refusal ground here?
The explanation says their nature is not itself a ground for refusal under this section.
Need help applying this provision to your situation?
Contact BizeneedLast updated 10 October 2026