Section 9 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 9 lists the reasons a mark can be refused whatever other marks exist on the register. They are called absolute grounds because they turn on the mark itself: is it distinctive, is it merely descriptive, could it deceive or offend, is it only a shape that is natural, functional or valuable. This article reads the section sub-section by sub-section. For a practical reply to an objection, see the separate guide on section 9 descriptive-mark objections.
Under 9(1) three kinds of marks shall not be registered: those devoid of any distinctive character, those consisting exclusively of descriptive indications, and those consisting exclusively of customary terms. The proviso saves a mark that has acquired a distinctive character through use before the date of application, or is a well-known trade mark. 9(2) bars deceptive, religiously offensive, scandalous or obscene marks and marks barred by the 1950 Emblems and Names Act. 9(3) bars three kinds of shape.
Section 9(1): distinctiveness, description and custom
Three kinds of "trade marks" shall not be registered.
| Clause | Ground | Text in plain form |
|---|---|---|
| 9(1)(a) | No distinctive character | Devoid of any distinctive character, that is, not capable of distinguishing the goods or services of one person from another |
| 9(1)(b) | Descriptive | Consist exclusively of marks or indications which may serve in trade to designate kind, quality, quantity, intended purpose, values, geographical origin or time of production of goods or rendering of the service, or other characteristics |
| 9(1)(c) | Customary | Consist exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade |
If the examiner has raised any of these grounds against your application, our trademark objection reply service prepares the written reply and evidence.
What "exclusively" does
Clauses (b) and (c) apply to marks that consist exclusively of such indications. A mark that combines a descriptive word with a distinctive element is not caught by the word "exclusively" in the same way; the question is whether the whole mark is only description or custom.
The proviso: acquired distinctiveness and well-known marks
A trade mark shall not be refused registration if, before the date of application, it has acquired a distinctive character as a result of the use made of it, or is a well-known trade mark. Two points:
- The distinctiveness must have been acquired before the date of application, not after.
- It must result from use of the mark.
This proviso is about 9(1) only; it sits at the end of that sub-section. Section 32, covered later in this series, deals with proof of acquired distinctiveness.
Example. "Fresh Crunch" for potato chips describes the product, so 9(1)(b) can apply. If the applicant can show that, before the date of the application, years of use made "Fresh Crunch" identify its chips to buyers, the proviso says registration shall not be refused on the 9(1) grounds.
Section 9(2): marks that must not be registered
A mark shall not be registered as a trade mark if:
| Clause | Ground |
|---|---|
| 9(2)(a) | It is of such nature as to deceive the public or cause confusion |
| 9(2)(b) | It contains or comprises any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India |
| 9(2)(c) | It comprises or contains scandalous or obscene matter |
| 9(2)(d) | Its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950) |
Unlike 9(1), sub-section (2) has no proviso. Clause (a) is about the mark itself being likely to deceive or cause confusion; confusion with a particular earlier mark is the subject of section 11, which is a relative ground.
Section 9(3): shapes
A mark shall not be registered if it consists exclusively of:
- (a) the shape of goods which results from the nature of the goods themselves; or
- (b) the shape of goods which is necessary to obtain a technical result; or
- (c) the shape which gives substantial value to the goods.
This is the counterpart of the definition of "mark" in 2(1)(m), which includes the shape of goods. A shape can be a mark, but not one of these three kinds when the mark consists exclusively of that shape. If your pack or product shape is distinctive in a way that falls outside the three, it can still be considered.
The Explanation
The Explanation to section 9 says that, for its purposes, the nature of goods or services in relation to which the trade mark is used or proposed to be used shall not be a ground for refusal of registration. In other words, the Registrar cannot refuse a mark just because of the type of goods or services it is for; a ground must come from the mark itself under the sub-sections above. The Explanation is printed at the end of the section, after sub-section (3).
How the grounds fit together
| If your mark... | Look at |
|---|---|
| Is a plain word for the product | 9(1)(a), (b), (c) |
| Names the place or quality of the goods | 9(1)(b) |
| Is a common trade term | 9(1)(c) |
| Might mislead buyers about the goods | 9(2)(a) |
| Uses a religious name or symbol | 9(2)(b) |
| Is the natural, functional or valuable shape of the goods | 9(3) |
| Has long use before filing | Proviso to 9(1) |
Practical points
- Pick a coined or arbitrary word where you can; descriptive names invite a 9(1) objection. Our note on what cannot be registered gives examples.
- Keep evidence of use with dates, because the proviso turns on acquired distinctiveness before the application date; see evidence of use.
- Respond to an objection in writing. If the Registrar refuses or accepts conditionally, section 18(5) requires the grounds and materials to be recorded in writing; see section 18.
- Do not assume 9 is the only hurdle. Even a distinctive mark can be refused under section 11.
Need help with a Section 9 objection?
An objection under section 9 usually asks whether your mark is distinctive or merely describes the goods. A reasoned reply, with proof of use where it exists, often decides the outcome. Our trademark objection reply team prepares it and can appear at the hearing.
Key takeaways
- 9(1) bars marks devoid of distinctive character, descriptive marks and customary marks.
- The proviso saves marks that acquired distinctive character through use before the application date, and well-known marks.
- 9(2) bars deceptive, religiously offensive, scandalous or obscene marks and marks prohibited under the 1950 Emblems and Names Act.
- 9(3) bars marks consisting exclusively of a natural, functional or value-adding shape.
- The Explanation says the nature of the goods or services is not itself a ground for refusal.
- Section 9 is not amended by the 2021 or 2023 Acts consulted for this series.
Read next
- Section 10: limitation as to colour
- Section 11: relative grounds for refusal of registration
- Section 12: honest concurrent use
- What cannot be registered: absolute grounds for refusal
Disclaimer: Based on the Trade Marks Act, 1999 as amended by the Tribunals Reforms Act, 2021 and the Jan Vishwas (Amendment of Provisions) Act, 2023, as consulted on 1 October 2026. Forms, fees and procedure are set by the Trade Marks Rules, 2017 as amended from time to time. This article is general information, not legal advice; check the official text before acting.