A trade mark is generally a visually perceptible sign used in relation to goods or services. The primary purpose of a trade mark is to identify the commercial or trade origins of the goods or services. As such a trade mark distinguishes a particular product from another product.
To be registered under the Trade Marks Act, a trade mark must be distinctive, must not cause any confusion or deception, should not contain scandalous or obscene matter, and should not be in any way offensive to the religious feelings of anyone. Under Section 9 of the Trade Marks Act, 1999, there is an express bar on the registration of those marks that are not distinctive, or 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 services or other characteristics of the goods or services. Another absolute ground for refusal of registration under the same provision is that the mark proposed to be registered consists exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade.
The Controller-General of Patents, Designs and Trade Marks is the Registrar of Trade Marks, who, for the purpose of registration of trademarks, classifies the goods and services in accordance with the international classification of goods and services. The trade mark law does not confer any new right but affords statutory protection to an already recognized right under Common Law. It supplements a pre-existent right and, therefore, registration of trade mark is cumulative and not alternative to the common law protection that trademarks already enjoy.