Absolute & Relative Grounds for Refusal of Trademark: Sections 9 & 11 Explained

Have you ever spent months building a brand, only to see your trademark application rejected? In India, this is a common hurdle entrepreneurs often face. Some of these issues arise when applicants overlook rules outlined in Sections 9 and 11 of the Trademark Act, 1999. These sections set clear rules about what can or cannot be accepted during trademark registration. Section 9 of the trademark act examines if a mark is distinctive and identifies your goods or services. Section 11, on the other hand, safeguards existing brands from being copied or confused with new ones.

Building a strong brand goes beyond picking a catchy name or designing an appealing logo. 

Many entrepreneurs overlook the legal framework and end up facing trademark objections that could have been easily avoided. Knowing how Sections 9 and 11 work helps you anticipate potential hurdles and protect your brand from legal disputes.  

In this blog, we’ll break down absolute grounds for refusal of registration of a trademark and relative grounds under Section 11. Knowing the ins and outs will help you secure your brand without headaches.

What are Absolute Grounds for Refusal of Trademark (Section 9)?

Absolute grounds for refusal are the most common reasons a trademark application gets rejected in India. They focus on the mark itself, not on existing trademarks. Section 9 of the Trade Marks Act protects only marks that can identify the source of goods or services.

These grounds apply to all applicants, regardless of whether someone else uses a similar mark. The law ensures trademarks serve their main purpose: identifying the source of goods or services. The trademark office, aka CGPDTM, does not protect marks that fail this test.

Key Absolute Grounds for Refusal

Here are the key reasons a mark can be refused under Section 9 of the Trademark Act:

1. Lack of Distinctiveness: Section 9(1)(a)

A mark must clearly identify your goods or services. If it is too generic or common, it cannot serve as a trademark.

Example: Using “SWEET” for a chocolate brand. Customers cannot identify the source just from this name.

2. Descriptive Marks: Section 9(1)(b)

The trademark office may reject marks that describe the quality, quantity, purpose, or characteristics of a product.

Example: “COLD & CREAMY” for ice cream. It simply describes the product rather than distinguishing it.

Note: If a descriptive mark has acquired distinctiveness, such as widespread recognition or strong marketing, it may overcome trademark registration refusal in India.

3. Generic Terms: Section 9(1)(c)

Marks that are widely used in trade or common in the industry cannot be registered. Such terms fail to identify a specific source and cannot be monopolized.

Example: “MILK” for dairy products or “BEST QUALITY” for packaged foods cannot be exclusive, as they are standard in trade.

4. Deceptive or Misleading Marks: Section 9(1)(e)

Marks that mislead consumers about the product’s nature, quality, or origin are refused.

Example: “ORGANIC PURE” for non-organic products. Customers would be deceived.

5. Marks Contrary to Law or Morality: Section 9(2)

The trademark office does not register trademarks containing offensive, obscene, or illegal content.

Example: Any profane word or symbol that offends public morality.

6. Marks Prohibited Under Official Emblems: Section 9(3)

As per the law, trademarks cannot use:

• National flags or emblems
• Government symbols
• International organization logos

Example: Using the Indian national emblem for a private business.

Be aware of these absolute grounds for refusal of registration of trademarks in India while choosing your mark. This can help you save time, prevent legal hurdles, and strengthen your brand’s identity from the very start.

How to Overcome Absolute Section 9 Objections?

Getting a trademark objection under Section 9 can feel frustrating, but it is avoidable with the right approach. Here’s how businesses can overcome them:

• Avoid generic or descriptive words and create a unique name or logo that clearly identifies your brand.
• Show that a descriptive mark has gained distinctiveness through sales, marketing, or consumer recognition.
• Ensure your mark does not mislead consumers about the product’s nature, quality, or origin.
• Do not use obscene content, immoral words, or official emblems like national flags or government symbols.
• Check your mark for distinctiveness, descriptiveness, or misleading elements before filing to reduce objections.
• Hire an expert like RegisterKaro to draft a strong reply to trademark objections and provide supporting evidence or alternative names.

By following these tips, businesses can reduce the risk of rejection, protect their brand identity, and save valuable time and resources.

Overview of Section 11 of the Trademark Act: Relative Grounds for Refusal

Section 11 of the Trade Marks Act shifts the focus to the marketplace. It looks at trademarks that already exist on record and asks whether a new mark could interfere with their identity. The core objective is to avoid confusion and safeguard the rights of earlier brand owners. If a new mark closely resembles an existing one, the Registrar can refuse it under relative grounds.

Unlike Section 9, this one evaluates trademarks from the perspective of an average consumer and not a legal expert. It considers whether a buyer relying on memory might assume a connection between two brands. Factors such as similarity in appearance, sound, or meaning, the nature of goods or services, and the reputation of the existing mark are carefully weighed. 

Key Relative Grounds for Refusal as per Section 11 of the Trademark Act

Key factors considered by the Registry include:

1. Visual, Phonetic, or Conceptual Similarity

Marks that look, sound, or convey a similar idea to an existing trademark may be refused. 

Example: “MIRACLE MILK” and “MIRACOL MILK” could confuse consumers due to their close resemblance.

2. Similarity of Goods or Services

Even if the marks differ slightly, overlapping product categories or industries increase the chance of refusal.

Example: A beverage brand called “FRESH JUICE” may conflict with “FRESH JUICE” for packaged fruit products.

3. Trade Channels and Target Audience

If both brands operate in the same market or target a similar group of consumers, confusion is more likely.

Example: Two skincare brands sold in the same retail stores could trigger trademark registry objections under Section 11.

4. Reputation of the Existing Mark

The trademark office grants broader protection to well-known or established trademarks. Even unrelated products can be blocked if the new mark might dilute or harm the existing brand’s reputation.

Example: A new clothing line named “NIKE SPORTSWEAR” would face refusal due to the global recognition of NIKE.

5. Overall Impression

The Registry evaluates the combined effect of a mark’s appearance, sound, and meaning. Small differences may not be enough if the overall impression is similar to an existing trademark.

Example: “BLUEWAVE” for bottled water and “BLUWAVE” for a similar product could be refused. Despite minor spelling differences, the overall impression is nearly identical.

Choosing a trademark that clears these relative grounds strengthens your brand and reduces the risk of rejection at the examination stage.

How to Overcome Relative Section 11 Objections?

Businesses may find an objection under Section 11 challenging, but they can address it with clear arguments and evidence. Here’s how you can respond effectively:

• Conduct a Thorough Trademark Search: Use IP India database or RegisterKaro’s free trademark name availability check tool to identify similar marks early. This helps you assess risks and refine your application before conflicts arise.
• Highlight Clear Differences Between the Marks: Emphasize visual, phonetic, or conceptual differences to show the marks create distinct impressions.
• Differentiate the Goods or Services: Explain how your offerings differ in nature, use, or market segment. Separate trade channels reduce confusion.
• Define the Target Consumer Base: Show that your products serve a different class of consumers or operate in a distinct market. This minimizes the likelihood of confusion.
• Rely on Honest Concurrent Use: If applicable, provide evidence of long-standing, independent use such as invoices, ads, or sales records.
• Avoid Conflict with Well-Known Trademarks: Even in unrelated industries, similarity with famous brands rarely succeeds. Rebranding may be the safer option.
• Seek Professional Trademark Support: Experts like RegisterKaro can draft strong responses, prepare supporting evidence, and guide you properly.

Addressing Section 11 objections strategically helps businesses protect their brand identity while respecting the rights of existing trademarks. With the right approach, a mark can clear relative grounds and gain robust legal protection.

Difference Between Sections 9 and 11 of the Trademark Act 

While both Section 9 and Section 11 of the Trade Marks Act can result in trademark refusals, each targets a different area of concern. Knowing the difference between Sections 9 and 11 of the Trademark Act allows applicants to strategize effectively and enhance the likelihood of securing trademark approval.

Here’s a table comparing the difference between absolute and relative grounds for refusal of trademarks:

Basis of Comparison	Section 9 – Absolute Grounds	Section 11 – Relative Grounds
Nature of Objection	Based on the mark itself	Based on conflict with earlier trademarks
Legal Focus	Distinctiveness and compliance with law	Likelihood of confusion with earlier marks
Key Concern	Whether the mark can identify a brand	Whether the mark interferes with existing rights
Applicability	Applies even if no similar mark exists	Applies only when earlier marks are on record
Consumer Impact	Prevents misleading or generic marks	Prevents confusion among consumers
Can It Be Overcome?	Yes, by creating distinctiveness or providing evidence of acquired use	Yes, by highlighting differences, honest concurrent use, or clarifying market distinctions
Common Examples	Descriptive, generic, or deceptive names	Similar-sounding, lookalike, or conceptually close marks
Relevant Provision	Section 9 of the Trade Marks Act	Section 11 of the Trade Marks Act

Together, these provisions maintain a fair and balanced trademark system, safeguarding both new and established brands.

Common Mistakes and How to Avoid Trademark Refusal

Simple yet costly mistakes cause many trademark applications to fail. Most of these errors are preventable with the right approach. Knowing both the problem and the solution can significantly improve your chances of registration.

• Choosing a Descriptive or Generic Name: Descriptive marks lack distinctiveness and attract Section 9 objections. Opt for invented, arbitrary, or suggestive names that clearly stand out.
• Skipping a Trademark Search: Filing without checking existing trademarks leads to Section 11 objections. Conduct a comprehensive trademark search before filing to identify conflicts early.
• Imitating Popular or Well-Known Brands: The trademark office often refuses applications that resemble famous marks immediately. Create an original brand identity and avoid names that resemble well-known trademarks.
• Using Misleading or False Terms: Deceptive words misrepresent the product and violate Section 9. Use accurate and truthful terms that reflect the actual nature of your goods or services
• Including Prohibited Symbols or Names: The trademark Registry does not allow national emblems or restricted symbols in trademarks. Stick to original designs and avoid protected or official symbols.
• Incorrect Classification of Goods or Services: Selecting the wrong class weakens the application and delays the process. Select the correct trademark class based on current and future business activities.
• Filing Without Professional Guidance: Poor drafting and weak responses reduce approval chances. Seek professional assistance for filing and responding to objections.

Avoiding absolute and relative grounds for refusal of registration of a trademark requires more than guesswork. It demands experience, legal insight, and precision. RegisterKaro brings years of hands-on expertise in handling trademark filings, objections, and examiner responses across industries.

Our experts study how the Trademark Registry applies Sections 9 and 11 in real-world cases. From conducting trademark searches to drafting strong replies, we help businesses minimize rejection risks and secure lasting brand protection. 

With RegisterKaro, you don’t just file a trademark- you file it right.

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