Section 6 requires that the applicant may be required to obtain preliminary advice from
the registrar to whether the proposed trademark appears to the registrar to be inherently
adapted to distinguish or capable of distinguishing goods or services of the proposed
undertaking from those of other undertakings and the registrar shall advice accordingly.
Then the applicant shall be required to apply for registration of the trademark and the
registrar shall accept absolutely or with conditions or limitations under section 7 of the
Act. Subsequently, the registrar shall cause the publication of the accepted trademark
and the publication shall be for 60 days as per section 11.
Needless to say, the purpose of this publication is to encourage anyone with a claim to
or against the published trademark to object to the registration of the trademark. This is
buttressed under section 12 (1) that provides for a person may, within the prescribed
time from the date of publication of an application, give notice to the registrar of AN
OBJECTION TO THE REGISTRATION. Therefore, mere acceptance by the registrar
with or without conditions or limitations does not in itself determine the end of the
registration process. The argument by the applicant does not suffice in the circumstances.
Registration does not end at acceptance since it is a process with concurrent stages.
Distinctiveness
Section 9 (2) (a) defines distinctiveness to mean in the case of a trademark relating to
goods, adapted in relation to the goods in respect of which the trademark is registered or
proposed to be registered, to distinguish goods with which the owner of the trademark is
or may be connected, in the course of trade, from goods in the case of which no
connection subsists.
In Canon Kabushiki Kaisha v Metro-Goldwyn-Mayer Inc (1999) RPC 117, it was noted
that a distinctive mark is one that enables members of the public to distinguish the product
or service that it designates from those which have a different trade origin and to conclude
that the products and services that it is designated have been manufactured, marketed
or supplied under the control of the owner who is responsible for the identity.
The distinctive character of the earlier trade mark, and in particular its reputation, must
be taken into account when determining whether the similarity between the goods or
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