The Requirements to Register a Shape Mark in India

It is not usual that a consumer will identify the source of a product by an image, at least it is not as direct of a message as for a word mark. However, once a brand has built a reputation it can be very powerful to promote and distinguish an operator from its competitors.

Looking into the Indian Trade Marks Act, it is mostly relevant to look into article 9(1) and 9(3) determining the absolute grounds of refusal of registration. Mainly the mark composed of a shape, or any kind of trademark must be distinctive, either inherently or by acquired distinctiveness in the course of trade. Nevertheless, article 9(3) also establishes that a trademark 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.

On the grounds of such rule the Delhi High court interpreted a recent, interesting case Knitpro International v. Examiner of Trade Marks through Registrar of Trade Marks.