Intellectual Property Rights - Law and Practice · Types of Intellectual Property

Trademarks under the Trade Marks Act, 1999

Updated 11 October 2026 · Fact-checked

A trademark is a mark capable of being represented graphically that distinguishes the goods or services of one person from those of others. It may include a shape, packaging or colour combination. To answer a question, define the mark, test registrability, name its type, state the owner's rights and give the term: 10 years, renewable.

Understand Trademarks

A trademark is a badge of origin. When you see a name, logo or shape on a product, you link it to a particular business. The law protects that link so that buyers are not confused and the business keeps the goodwill it has built.

Under the Trade Marks Act, 1999, a trademark is a mark capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others. It may include the shape of goods, their packaging and a combination of colours. A mark can be a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours.

The Act protects several kinds of marks. A service mark is a mark used for services, such as banking, hotels or transport, instead of goods. A collective mark belongs to members of an association. A certification mark shows that goods or services meet a set standard of origin, material, quality or other characteristic. A well-known trade mark is one known to a substantial section of the public that uses the goods or services, so that use on unrelated goods would suggest a connection with its owner. A series mark is a set of marks of the same owner that share a common feature but differ in minor ways.

Registration is not always allowed. Absolute grounds concern the mark itself: for example, it lacks distinctive character, is purely descriptive, is customary in trade, is deceptive or likely to confuse the public, hurts religious sentiments, or is scandalous or obscene. Relative grounds concern earlier rights: the mark is identical or similar to an earlier trademark for identical or similar goods or services, creating a likelihood of confusion. A mark refused as non-distinctive may still be registered if it has acquired distinctiveness through use before the application date.

Once registered, the owner gets the exclusive right to use the mark for the goods or services covered and to seek relief for infringement. Registration is for 10 years from the date of application, and can be renewed for further periods of 10 years each. Unregistered marks still get protection through the common law action of passing off.

Key rules to remember

Definition of trademark: Trademark = mark + capable of graphical representation + capable of distinguishing goods or services; All three elements must be present. Shape of goods, packaging and colour combinations can qualify.
Absolute grounds: Refusal because of the nature of the mark itself; Examples: no distinctive character, descriptive, customary in trade, deceptive, offensive. Acquired distinctiveness through use can cure some of these.
Relative grounds: Refusal because of an earlier mark: identical or similar mark + identical or similar goods or services + likelihood of confusion; The test is confusion of the public, which may include association with the earlier mark.
Term of registration: 10 years from the date of application; renewable for 10 years each time; Renewal is by application and fee. A lapsed mark can be restored by the Registrar in the prescribed manner.
Goods versus services: Trademark → goods; service mark → services; The Act treats both under the same registration system. The difference lies in what the mark is used for.

How to solve Trademarks questions

Trademark questions are case-based. Work in the order the examiner expects: rule, facts, conclusion.

1Read the facts and list the mark, the goods or services, the owner and any earlier mark.
2State the definition of a trademark and check graphical representation and distinctiveness.
3Identify the type of mark: trademark, service mark, collective, certification, well-known or series.
4Test registrability. First apply the absolute grounds, then the relative grounds, and note any acquired distinctiveness.
5State the owner's rights after registration and the remedy available for infringement, or passing off if unregistered.
6Give the term and renewal position if the facts mention time.
7Write a clear conclusion that answers the exact question asked.

Quickest way: Definition, Ground, Right, Term

When to use it: Use it when you have little time or for short-note questions on trademarks.

Write the definition in one line with its three elements.
Name the type of mark involved.
For registrability, ask two questions: is the mark itself defective (absolute), or does an earlier mark clash (relative)?
Close with the right conferred and the 10-year renewable term.

Common mistakes in Trademarks

Mixing up absolute and relative grounds.
Both lead to refusal, so students list them together.
Fix: Ask whether the problem lies in the mark alone (absolute) or in a clash with an earlier mark (relative).
Saying a trademark must be a word or logo.
Students think only of brand names.
Fix: Mention that shape of goods, packaging and colour combinations can qualify if they distinguish and can be represented graphically.
Treating a service mark as a different right outside the Act.
The name suggests a separate regime.
Fix: State that it is a mark used for services and is registered and protected under the same Act.
Stating that registration lasts for life or for 7 years.
Confusion with older law or other IP terms.
Fix: Remember 10 years, renewable for 10-year periods.
Refusing a descriptive mark without considering acquired distinctiveness.
Students stop at the rule and ignore the exception.
Fix: Check if the facts show long and extensive use before the application date that makes the public link the mark to one owner.
Claiming that an unregistered mark has no remedy.
Focus on registration alone.
Fix: Add that passing off protects goodwill in an unregistered mark.

Worked examples

Example 1

Sundaram Foods Pvt. Ltd. applies to register the word 'Sweet' for its sugar. The Registrar objects. Discuss whether the objection is valid and whether Sundaram has any way forward.

Show the solution

Rule: a mark must be capable of distinguishing goods. A mark that is purely descriptive of the goods or their quality lacks distinctive character, which is an absolute ground for refusal.
Facts: 'Sweet' directly describes a quality of sugar. Other traders need to use the word freely.
Application: on these facts the mark is descriptive and non-distinctive, so the objection is valid.
Exception: a mark refused on this ground may be registered if, before the application date, it has acquired a distinctive character through use.
Way forward: Sundaram can try to show long and extensive use that makes the public link 'Sweet' only with its sugar, or adopt a more distinctive mark.

Answer: The objection is valid because 'Sweet' is descriptive of sugar and lacks distinctive character. Sundaram can succeed only by proving acquired distinctiveness through use before the application date.

Example 2

Kaveri Textiles has registered a mark for sarees. A rival, Lotus Weaves, applies to register a deceptively similar mark for sarees. Which type of ground may be used against Lotus Weaves, and for how long does Kaveri's protection run?

Show the solution

Identify the clash: Lotus Weaves' mark is similar to an earlier registered mark and is sought for identical goods.
Rule: where a mark is identical or similar to an earlier trademark for identical or similar goods and there is a likelihood of confusion, registration can be refused. This is a relative ground.
Application: the public may think the sarees come from Kaveri, so confusion is likely.
Term: Kaveri's registration lasts 10 years from the date of application and can be renewed for 10-year periods.
Remedy note: if Lotus Weaves uses the mark, Kaveri can sue for infringement as a registered owner.

Answer: Kaveri can rely on a relative ground for refusal because of the earlier similar mark for identical goods. Its registration runs for 10 years, renewable for further 10-year periods.

Exam tips

Start every answer with the statutory definition. It earns marks even when the rest is partial.
In registrability problems, write 'absolute' and 'relative' as headings in your answer and place each fact under the right one.
Name the type of mark used in the facts, such as service mark or certification mark, and give its one-line meaning.
Do not quote section numbers unless you are sure of them. Clear rules and correct application score better.
Always end with a conclusion that says registered or refused, and what the owner can do next.

Practice questions from Types of Intellectual Property

Trademarks: frequently asked questions

What is the difference between a trademark and a service mark?

A trademark distinguishes goods, while a service mark distinguishes services such as banking or transport. Both are registered under the Trade Marks Act, 1999, and enjoy protection under the same system.

What are absolute and relative grounds for refusing registration?

Absolute grounds relate to the mark itself, such as lack of distinctiveness, descriptiveness or deceptiveness. Relative grounds arise from an earlier identical or similar mark for identical or similar goods or services that is likely to cause confusion.

How long does trademark registration last in India?

Registration is valid for 10 years from the date of application. You can renew it for further periods of 10 years each.

Can a colour or shape be a trademark?

Yes. The Act says a trademark may include the shape of goods, their packaging and a combination of colours. The mark must still be capable of graphical representation and of distinguishing the goods or services.