Trade mark
Also called: Trademark, Registered trade mark
Under Section 2(1)(zb) of the Trade Marks Act, 1999, a mark capable of graphical representation and of distinguishing one person's goods or services from others'.
Explained
Section 2(1)(zb) of the Trade Marks Act, 1999 defines a trade mark as a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others, and which may include the shape of goods, their packaging and combination of colours. Mark itself is defined inclusively in Section 2(1)(m) to cover a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination of these. Under Section 2(2)(a), a reference to trade mark includes a collective mark and a certification trade mark.
Two tests must be met: graphical representation and capacity to distinguish. Distinctiveness is the heart of the matter. Section 9 refuses registration to marks devoid of distinctive character, to marks consisting exclusively of indications of kind, quality, quantity, purpose, value or geographical origin, and to marks that have become customary in the trade. Its proviso allows registration where the mark has acquired distinctive character through use before the application, or is a well known trade mark under Section 2(1)(zg).
Clause (zb) gives two working meanings. For the offences in Chapter XII, other than Section 107, it means a registered trade mark or a mark used to indicate a connection in the course of trade with the proprietor. For other provisions, it means a mark used or proposed to be used in relation to goods or services for that purpose. Registration lasts ten years and may be renewed (Section 25).
The registered and unregistered positions differ. Under Section 27(1), no action lies for infringement of an unregistered trade mark, but Section 27(2) preserves the common law action for passing off. Infringement of a registered mark under Section 29 needs use of an identical or deceptively similar mark; deceptive similarity is judged from the view of a purchaser of average intelligence and imperfect recollection, with a stricter test for medicinal products.
What the law says
(w) “registered trade mark” means a trade mark which is actually on the register and remaining in force;
Clause (zb) of sub-section (1) defines trade mark; clauses (m) and (zg)
(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;
Absolute grounds for refusal, based on distinctiveness
(1) The registration of a trade mark, after the commencement of this Act, shall be for a period of ten years, but may be renewed from time to time in accordance with the provisions of this section.
(2) The Registrar shall, on application made by the registered proprietor of a trade mark in the prescribed manner and within the prescribed period and subject to payment of the prescribed fee, renew the registration of the trade mark for a period of ten years from the date of expiration of the original registration or of the last renewal of registration, as the case may be (which date is in this section referred to as the expiration of the last registration).
(3) At the prescribed time before the expiration of the last registration of a trade mark the Registrar shall send notice in the prescribed manner to the registered proprietor of the date of expiration and the conditions as to payment of fees and otherwise upon which a renewal of registration may be obtained, and, if at the expiration of the time prescribed in that behalf those conditions have not been duly complied with the Registrar may remove the trade mark from the register:
Ten year registration and renewal
(1) No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark.
(2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods of another person or as services provided by another person, or the remedies in respect thereof.
No infringement action for unregistered marks; passing off saved
(1) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.
(2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of—
(a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or
Infringement of registered trade marks
For the exam
- Section 2(1)(zb): graphical representation plus capacity to distinguish.
- Shape of goods, packaging and colour combinations can be trade marks.
- Acquired distinctiveness or well known status overcomes Section 9(1) objections.
- No infringement suit for an unregistered mark; passing off is preserved (Section 27).
- Registration is for ten years and renewable (Section 25).
82 questions in the Law Maker question bank use this term. Practise Intellectual Property Law questions
Judgments
Related terms
- InventionUnder Section 2(1)(j) of the Patents Act, 1970, a new product or process involving an inventive step and capable of industrial application.
- Inventive stepUnder Section 2(1)(ja) of the Patents Act, 1970, a feature of an invention involving technical advance over existing knowledge or economic significance or both, which makes it not obvious to a person skilled in the art.
- Deceitful meansUnder the Explanation to Section 69 of the BNS, includes inducement for, or false promise of, employment or promotion, or marrying by suppressing identity.
- GoodsUnder Section 2(7) of the Sale of Goods Act, 1930, every kind of movable property other than actionable claims and money, including stocks and shares, growing crops and things to be severed from land.
- Unfair trade practiceA trade practice that, to promote the sale, use or supply of goods or services, adopts an unfair method or an unfair or deceptive practice, including those listed in Section 2(47) of the Consumer Protection Act, 2019.
Further reading
Checked 6 November 2026. Statutory text is quoted from the Bare Acts library, taken from India Code. See the full glossary.