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Section 9 – The Trade and Merchandise Marks Act,1958

The Trade and Merchandise Marks Act,1958

Section 9. Requisites for registration in parts a and b of the register

(1) A trade mark shall not be registered in Part A of the register unless it contains or consists of at least one of the following essential particulars, namely:

(a) The name of a company, individual or firm represented in a special or particular manner;

(b) The signature of the applicant for registration or some predecessor in his business;

(c) One or more invented words;

(d) One or more words having no direct reference to the character or quality of the goods and not being, according to its ordinary signification, a geographical name or a surname or a personal name or any common abbreviation thereof or the name of a sect, caste or tribe in India;

(e) Any other distinctive mark.

(2) A name, signature or word, other than such as, fall within the descriptions in Cls. (a), (b), (c) and (d) of sub- section (1) shall not be registrable in Part A of the register except upon evidence of its distinctiveness.

(3) For the purposes of this Act, the expression “distinctive” in relation to the goods in respect of which a trade mark is proposed to be registered, means adapted to distinguish goods with which the proprietor of the trade mark is or may be connected in the course of trade from goods in the case of which no such connection subsists either generally or, where the trade mark is proposed to be registered subject to limitations, in relation to use within the extent of the registration.

(4) A trade mark shall not be registered in Part B of the register unless the trade mark in relation to the goods in a respect of which it is proposed to be registered is distinctive, or is not distinctive but is capable of distinguishing goods with which the proprietor of trade mark is or may be connected in the course of trade from goods in the case of which no such connection subsists, either generally or, where the trade mark is proposed to be registered subject to limitations, in relation to use within the extent of the registration.

(5) In determining whether a trademark is distinctive or is capable of distinguishing as aforesaid, the Tribunal may have regard to the extent to which-

(a) A trade mark is inherently distinctive or is inherently capable of distinguishing as aforesaid; and

(b) By reason of the use of the trade mark or of any other circumstances, the trade mark is in fact so adapted to distinguish or is in fact capable of distinguishing as aforesaid.

(6) Subject to the other provisions of this section, a trade mark in respect of any goods-

(a) Registered in Part A of the register may be registered in Part B of the register; and

(b) Registered in Part B of the register may be registered in Part A of the register;

In the name of the same proprietor of the same trade mark or any part or parts thereof.

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The Trade and Merchandise Marks Act,1958

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