Absolute Bars: Section 9(2) and Prohibited Emblems in India

Certain categories of trade marks are absolutely prohibited from registration in India, regardless of how distinctive they may be or how much use the applicant can demonstrate. Section 9(2) of the Trade Marks Act, 1999, together with the Emblems and Names (Prevention of Improper Use) Act, 1950, establishes bars that cannot be overcome by evidence, argument, or consent. For foreign applicants unfamiliar with India’s cultural and legal landscape, these provisions represent a significant area of risk.

Section 9(2): The Four Absolute Bars

Section 9(2) provides that a mark shall not be registered if:

(a) Deceptive or Confusing Marks

A mark that is of such a nature as to deceive the public or cause confusion shall not be registered. This covers marks that falsely suggest qualities, geographic origins, or endorsements that the goods or services do not possess. For example, a mark like “Silk Touch” for synthetic fabrics would be objected to because it implies the presence of silk when none exists. Similarly, a mark suggesting a false geographic origin — such as “Swiss Made” for products manufactured in India — would fall under this bar.

(b) Religious Susceptibilities

A mark that contains or comprises any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India shall not be registered. This provision carries special significance in India’s diverse, multi-faith society. The bar applies broadly and includes:

• Names and images of deities: Marks incorporating Hindu deities, Islamic sacred terms, Sikh religious symbols, Christian religious figures, or other religious iconography are routinely refused, particularly for goods that might be considered disrespectful (such as footwear, alcohol, tobacco, or meat products).
• Religious texts and symbols: References to sacred texts, prayers, or religious symbols that could be seen as trivialising or commercialising religious sentiment.
• Names of religious leaders: Both historical and contemporary religious figures, saints, and spiritual leaders.

The assessment is made from the perspective of the relevant religious community, not the applicant’s intention. Even if the applicant intends no disrespect, the Registrar will refuse the mark if it is likely to cause offence. For example, a mark using the name “Ramayan” for footwear or depicting a deity image on alcohol labels would face immediate refusal.

(c) Scandalous or Obscene Matter

A mark that comprises or contains scandalous or obscene matter is refused. This covers vulgar language, sexually explicit imagery, and content that offends public decency.

(d) Prohibited Under the Emblems and Names Act

A mark whose use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950 cannot be registered. This statute protects a wide range of national and governmental symbols from commercial exploitation.

The Emblems and Names Act, 1950

This Act prohibits the use, for commercial purposes, of the following categories of names and symbols without government authorisation:

• The Indian national flag and any colourable imitation of it.
• The name and pictorial representation of Mahatma Gandhi and the Prime Minister of India.
• The Indian national emblem (the Lion Capital of Ashoka) and the Ashoka Chakra.
• The official seal of the Government of India or any State Government.
• Names and emblems of the United Nations, the World Health Organization, and other specified international organisations.
• The name “Indian National Congress” and various other specified names.

The Schedule to the Act lists the specific names and emblems protected. Any trade mark incorporating these elements will be refused under Section 9(2)(d), and this bar applies at the point of examination — the Registrar will raise the objection before the mark reaches publication.

No Proviso, No Override

Unlike Section 9(1), which permits descriptive marks to be rescued through acquired distinctiveness, Section 9(2) has no proviso. There is no amount of use, fame, or consumer recognition that can overcome these bars. They are absolute. A mark that offends religious susceptibilities or incorporates a prohibited emblem cannot be registered, period.

Enforcement and Penalties

The Emblems and Names Act does not merely bar registration — it also imposes criminal penalties for the improper commercial use of protected names and emblems. Any person who uses a protected name, emblem, or official seal in connection with trade, business, or profession without government permission may face imprisonment and fines. This means that even using a prohibited symbol as an unregistered mark in commerce carries legal risk beyond the refusal of registration.

Practical Examples

The scope of Section 9(2)(b) is illustrated by the types of marks that have been refused or challenged:

• A mark using a deity image on alcohol or tobacco products would face immediate refusal, as the combination is considered deeply offensive to religious communities.
• Marks incorporating terms like “Ganga” (for the sacred river) on certain product categories have been objected to on religious grounds.
• Marks that use Islamic calligraphy or Quranic references for commercial products unrelated to religious observance face refusal.
• Any mark incorporating the Ashoka Chakra, the tricolour of the Indian flag, or Mahatma Gandhi’s name or image is refused under the Emblems and Names Act.

Strategic Recommendations

• Screen for religious and cultural sensitivity: Before filing in India, assess whether any element of the mark could be perceived as offensive to any religious community. This requires local cultural knowledge — a mark that is perfectly acceptable in Western markets may be deeply problematic in India.
• Avoid deity imagery and religious names: Unless the goods or services are directly related to religious practice (and even then, with caution), do not incorporate religious names, images, or symbols into trade marks intended for the Indian market.
• Check the Emblems and Names Act Schedule: Review the list of protected names and symbols before filing. Pay particular attention to marks that might incorporate national colours, government-associated imagery, or references to national leaders.
• Consult local counsel: Indian trade mark attorneys can provide cultural sensitivity screening that may not be obvious to foreign applicants.

Key Takeaway

Section 9(2) and the Emblems and Names Act impose absolute, non-negotiable bars on registration. The religious susceptibilities provision is particularly important in India’s multi-faith context and catches marks that applicants from other jurisdictions might not recognise as problematic. These are not procedural hurdles to be overcome with evidence — they are hard limits. Pre-filing screening for religious, cultural, and emblematic sensitivity is not optional in India; it is a fundamental part of the clearance process.