A trademark application in India may be objected to, and eventually refused, on two kinds of grounds. Absolute grounds look at the mark itself: is it distinctive, descriptive, deceptive, or offensive? Relative grounds look outward: does the mark clash with an earlier brand or a well-known name? Most objections in examination fall under one of these two heads.
This guide covers Indian law only. The grounds for refusal of trademark applications sit in the Trade Marks Act, 1999: absolute grounds in Section 9 and relative grounds in Section 11. In practice these grounds usually surface first as a trademark objection in the examination report. Knowing which head an objection falls under tells you what kind of answer the examiner is looking for, and whether the problem can be cured at all. For the complete context on the registration process, costs, and what a granted registration protects, see the complete guide to trademark registration in India.
Quick answer
• Absolute grounds (Section 9) are about your mark on its own; relative grounds (Section 11) are about conflict with someone else’s mark.
• A mark that is merely descriptive or not distinctive can often be saved by showing it became a recognised brand through use before you applied; deceptive, offensive, or functional-shape objections usually cannot be cured this way.
• Similarity to an earlier registered mark on similar goods is the objection the examiner usually raises during examination.
• Cross-class protection for well-known marks, and conflicts with unregistered or copyright rights, usually become decisive in opposition, when the earlier-rights owner raises them; the examiner’s own objection is usually the similarity kind.
• If the examiner objects, you have one month from the date you receive the examination report to reply, or the application can be treated as abandoned.
Where to start Choosing a brand name: screen it against both heads before filing, a clearance search for relative grounds and a distinctive, made-up or unrelated name for absolute grounds.Already have an examination report: check whether it cites Section 9, Section 11, or both, then go to ‘How to respond’ below.
Grounds for refusal of trademark: Section 9 vs Section 11
Indian trademark law splits the reasons a mark can be refused into two categories, and the split matters because each one is fixed in a different way.
Absolute grounds ask whether the mark is fit to be a trademark at all. A mark that simply names the product, or describes it, or offends, fails on its own terms, regardless of who else is in the market. Relative grounds ask a different question: even if your mark is fine on its own, does it tread on rights someone else already holds? The first is a problem with the mark; the second is a problem with the neighbourhood, the brands already out there.
| Absolute grounds (Section 9) | Relative grounds (Section 11) | |
| What is examined | The mark by itself | The mark against earlier rights |
| Typical reason | Not distinctive, descriptive, deceptive, offensive | Similar to an earlier mark; conflict with a well-known or unregistered right |
| Can it be cured? | Often, by proving acquired distinctiveness | Sometimes, by consent, coexistence, or narrowing goods |
| Who raises it | Examiner, during examination | Examiner raises Section 11(1) similarity; well-known, passing-off, and copyright conflicts usually raised by an opponent |
For founders, the practical takeaway is to screen a proposed name against both heads before filing. A clearance search, the starting point of any trademark search, addresses relative grounds. Choosing a coined or arbitrary name addresses absolute grounds.
Absolute grounds: when the problem is the mark itself
Section 9 lists the situations where a mark cannot function as a trademark. These are about the nature of the mark, not about competitors.
Not distinctive, descriptive, or generic
The first cluster of objections is about whether the mark can tell one trader’s goods apart from another’s. A mark fails here in three overlapping ways. It can be devoid of distinctive character, meaning it does nothing to point to a single source. It can be descriptive, meaning it directly names a feature of the product: its kind, quality, quantity, purpose, value, geographical origin, or the time it was made. Or it can be customary, a word the trade or the public already uses generally for that kind of thing.
In plain terms, “Milk” for milk cannot be owned by one dairy, and “Cotton Wear” for garments describes the goods rather than branding them. The law keeps these terms free so competitors can describe their own products honestly. A coined word like KODAK, or an ordinary word used arbitrarily like APPLE for phones, sits at the opposite end and is distinctive on day one. The fuller treatment of this line sits in our guide on distinctive versus descriptive trademarks.
A mark can also start out distinctive and lose protection later if the public turns it into the everyday word for the product, a slide known as genericide. Words like “escalator” travelled that road.
Deceptive, offensive, or prohibited marks
The second cluster of Section 9 objections is about marks that should not be on the register for public-interest reasons, whatever their distinctiveness.
A mark is refused if it is likely to deceive the public or cause confusion, for example a name that signals a material the product does not contain. It is refused if it contains matter likely to hurt the religious sensibilities of any class of Indian citizens, which is why sacred names and deity images on unrelated goods draw objections. It is refused if it is scandalous or obscene. And it is refused if its use is barred by another law, such as the Emblems and Names (Prevention of Improper Use) Act, 1950, which protects national symbols and certain names. Indian courts have worked through where decency and morality draw the line, as we discuss in our judicial overview of obscene and offensive trademarks.
Shape marks
Section 9 also bars registering a shape on its own in three situations: where the shape comes from the nature of the goods, where it is needed to get a technical result, or where it gives substantial value to the goods. The aim is to stop a trader using trademark law, which can last indefinitely, to lock up a functional or genuinely valuable design that the law intends others to be free to use or that belongs to a different regime. Where a product’s shape is functional or decorative rather than a badge of origin, design registration under the Designs Act is usually the route to consider instead.
Note: A Section 9 objection is not always the end of the road. Where the mark is refused only for being descriptive or not distinctive, evidence that buyers already treat it as your brand can sometimes save it.
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Acquired distinctiveness: the main way to save a Section 9 mark
The escape route built into Section 9 is the most useful thing a founder can know about absolute grounds. A mark that is weak on paper, descriptive or otherwise lacking inherent distinctiveness, can still be registered if you can show that, by the date you applied, the public had already come to treat it as your brand.
This is acquired distinctiveness, and it is proved with evidence, not argument. Sales over time, advertising, market reach, media coverage, and the length and scale of use all show that consumers now read the mark as a brand rather than a plain description. Keeping clean records of first use, promotion, and sales from the start is worth far more than evidence assembled in a hurry once an objection arrives.
The limit is real, though. Acquired distinctiveness rescues a descriptive or non-distinctive mark; it does not rescue a deceptive, offensive, prohibited, or functional-shape one. Those objections are about public interest or the limits of trademark law, and no amount of market recognition cures them.
Relative grounds: when your mark clashes with another
Section 11 is about conflict. Even a perfectly distinctive mark can be refused if registering it would tread on rights someone else already holds. There are three main situations.
Likelihood of confusion with an earlier mark
The core relative ground is the risk that consumers will be confused. Where a later mark is identical or similar to an earlier mark, and the goods or services are identical or similar, registration is barred if there is a likelihood of confusion on the part of the public. That includes the likelihood that consumers will assume some link between the two brands even if they do not literally mix them up.
This is the objection the examiner most often raises on the Registry’s own review, by citing earlier marks the search throws up. A near-copy of a well-known drinks brand applied for the same goods is the obvious case. The defence against it is to clear the name properly before filing; whether two close marks can sit on the register together is a question we take up in our note on deceptively similar trademarks coexisting.
Well-known marks reach across classes
The second situation protects a well-known trademark in India even where the goods or services are completely different. The relevant question is whether the mark is well-known in India, which can come from its reputation spilling over into the Indian market; it does not require the mark to have been used or registered here. Normally trademark rights are tied to the class of goods or services. A well-known mark breaks out of that boundary: a later mark that is identical or similar to it, registered to a different owner even on unrelated goods, can be refused where using the later mark without due cause would take unfair advantage of, or damage, the well-known mark’s reputation or distinctiveness.
In practice this means adopting a name that echoes a globally famous brand is risky whatever your industry, because the famous owner’s protection is not confined to its own goods. “Due cause” is the narrow opening here: a genuine, legitimate reason for having chosen the mark. Without one, the resemblance is hard to defend.
Conflict with unregistered or copyright rights
The third situation covers rights that are not on the trademark register at all. A mark can be refused where its use in India could be stopped by the law of passing off, which protects an unregistered mark that someone has built up through trade, or where the mark would infringe a copyright, for instance by copying an artistic work or a character into a logo. The passing-off limb is why an established unregistered brand can still block a newcomer; see our piece on passing off and domain names for how that plays out.
Why many Section 11 conflicts are decided in opposition, not examination
Here is the point that surprises most applicants, and where a lot of online explanations go wrong. Not every relative ground is something the examiner applies on their own.
The Act says, in plain effect, that a mark cannot be refused on the well-known-mark ground or the unregistered-rights-and-copyright ground unless the owner of that earlier right raises it in opposition. So these are generally not grounds the examiner refuses on during examination; they take effect when the earlier-rights owner steps forward, after the mark is advertised, and formally opposes it.
What the examiner does enforce on the Registry’s own initiative is the straightforward similarity ground: your mark looks or sounds like an earlier registered mark for similar goods. So when an examination report cites Section 11, it is almost always this similarity objection. The bigger relative-grounds fights tend to happen later, once the mark is advertised and a four-month window opens for third parties to file an opposition. Understanding that sequence is useful for trademark opposition planning, both as the applicant and as a brand owner watching the journal.
There is also a release valve for conflicts. Where the owner of the earlier mark consents, the Registrar can allow the later mark to register, and the Act separately lets the Registrar permit two owners to hold identical or similar marks where there has been honest concurrent use or other special circumstances. That is the basis for coexistence and consent arrangements, covered in our guide to honest concurrent use. Consent is best recorded in a formal agreement so the right to register and use is defensible.
Note: “Objected” in the portal is not “Refused.” It means the examiner has raised concerns you must answer. Most Section 9 and Section 11 objections are resolved at the written-reply stage. Read our explainer on trademark objections before deciding what to do.
How to respond to a Section 9 or Section 11 objection
If your application is objected, the clock starts: you have one month from the date you receive the examination report to file a reply. Miss it, and the Registry can treat the application as abandoned.
The reply itself is built around the head of objection. For a Section 9 distinctiveness or descriptiveness objection, the answer sets out why the mark is distinctive, or marshals evidence of acquired distinctiveness if it is genuinely descriptive. For a Section 11 similarity objection, the answer distinguishes your mark from each cited mark, on appearance, sound, meaning, goods, and trade channels, and may rely on consent or coexistence where it exists. If the written reply does not satisfy the examiner, the matter moves to a show-cause hearing, a chance to argue the case before the Registrar, before a decision is taken.
| Objection | Example | Usual response |
| Section 9 descriptiveness | “Cotton Wear” for garments | Argue the mark is distinctive, or file evidence of acquired distinctiveness |
| Section 11(1) similarity | A similar mark already registered for similar goods | Distinguish the marks on look, sound, meaning, goods, and trade channels |
| Section 11(2) well-known mark | A name close to a famous brand in another field | Assess opposition risk and whether there is due cause |
Read the full examination report from the portal rather than relying on the status label, and where the case is finely balanced, a clash with a well-known mark in the same class with no consent available, take a professional view on viability before spending a month on a reply. The mechanics of registration are in our trademark registration process guide.
You can read the full text of the grounds in Sections 9 and 11 of the Trade Marks Act, 1999 on India Code.
FAQ: Sections 9 and 11 grounds for refusal
Absolute grounds, under Section 9 of the Trade Marks Act, 1999, concern the mark itself: whether it is distinctive, descriptive, deceptive, or offensive. Relative grounds, under Section 11, concern conflict with earlier rights, such as a similar registered mark, a well-known mark, or an unregistered or copyright interest.
Yes, in many cases. A mark that is descriptive or lacking inherent distinctiveness can be registered if you prove it acquired distinctive character through use before the application date, using sales, advertising, and reach evidence. Deceptive, offensive, or otherwise prohibited marks under Section 9(2) cannot be cured this way.
No. An objection, shown as “Objected” in the portal, means the examiner has raised concerns you must answer in a reply; the application is still alive. Refusal usually comes only later, if the reply and any hearing do not overcome the objection.
Section 11(1) bars registering a mark that is identical or similar to an earlier mark for identical or similar goods or services where there is a likelihood of confusion, including a likelihood that the public will assume the two brands are connected. This is the similarity objection examiners commonly raise.
Yes. Section 11(2) protects a well-known mark even against marks registered for dissimilar goods, where using the later mark without due cause would take unfair advantage of, or harm, the well-known mark’s reputation or distinctive character. The protection reaches beyond the class the well-known mark is registered in.
No. Under Section 11(5), the well-known-mark ground and the unregistered-rights-and-copyright ground are not automatic refusal bars at examination; they apply only when the earlier-rights owner raises them in opposition. The examiner enforces the similarity ground under Section 11(1) on its own initiative.
“Due cause” is a genuine, legitimate reason for adopting a mark that resembles a well-known trademark, such as honest prior use of your own. It is a narrow defence. Without a real justification, the resemblance to a well-known mark is difficult to defend and the application can be refused.
Sometimes. Section 12 lets the Registrar permit registration by more than one proprietor of identical or similar marks for the same or similar goods where there is honest concurrent use or other special circumstances, subject to conditions. Section 11(4) separately allows registration where the earlier-rights owner consents.
You have one month from the date you receive the examination report to file a reply, under Rule 33(4) of the Trade Marks Rules, 2017. If no response is filed within that period, the Registrar can treat the application as abandoned. An unsatisfactory reply leads to a show-cause hearing.
This article explains the grounds for refusal under the Trade Marks Act, 1999 for general information and is not legal advice. Whether a specific mark is refused, and whether an objection can be overcome, turns on the exact mark, the goods or services, the cited rights, and the evidence. For advice on a particular application or examination report, consult a qualified trademark professional.