Trade marks are signs, which are used to distinguish the goods or services of one undertaking from the goods or services of another undertaking.
Article 15.1 of the TRIPs agreement states that:
“Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trade mark”.
As per the definition the main function of a trade mark is to distinguish the goods and or services for which the trade mark is used. This means trade mark needs to be distinctive. Distinctiveness may be inherent or acquired through use. As general rule trade mark must not be descriptive or deceptive.
Registration of a sign as trade mark can be refused on absolute grounds or relative grounds. Lack of distinctiveness, in some legislative Acts termed as absolute ground for refusal. Another important absolute ground of refusal is if a sign is deceptive as to the nature, quality or any other characteristics of the goods or services, or their geographical origin. The third absolute ground for refusal the registration of a trade mark is if it is not capable of graphical reproduction.
In addition to absolute grounds for refusal, there are also relative grounds for refusal. The most prominent relative ground for refusal of a trade mark application is, the existence of an earlier trade mark, which is the same or confusingly similar to the later application filed by a third person.
Trade mark are in most countries protected for 10 years, but protection may be renewed again and again for another 10 years.
