Most Section 9 objections are about distinctiveness — but the section also quietly bars marks that offend religion or public decency. These lesser-seen grounds, in Section 9(2)(b) and (c), catch branding that crosses ethical lines.
The two provisions
Section 9 sets out absolute grounds for refusal. While Section 9(1) (descriptiveness/non-distinctiveness) dominates examination reports, Section 9(2) is broader:
- Section 9(2)(b) — a mark that “contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India.”
- Section 9(2)(c) — a mark that “comprises or contains scandalous or obscene matter.”
Religious sensibilities — settled ground
Section 9(2)(b) is relatively manageable in practice. In Lal Babu Priyadarshi v. Amritpal Singh (2015), the Supreme Court refused “Ramayan” (for incense sticks), holding that the name of a holy book cannot be trademarked under Section 9(2)(b). The Attukal Devi controversy likewise saw deity imagery challenged on religious grounds. (See our insight on trademarking deities.)
Scandalous or obscene — contested ground
Section 9(2)(c) is trickier. “Scandalous” and “obscene” are subjective, and the Act gives no precise definition — practice manuals suggest refusing marks that are facially offensive, but the line is blurry.
The tension is with free speech. The US Slants case is the comparative touchstone: an Asian-American band challenged the disparagement bar as violating First Amendment protections, and prevailed. Balancing trademark propriety against fundamental speech rights remains contested territory — and a reason Section 9(2)(c) is applied with caution.
Practical guidance
- Avoid religious names and sacred imagery as marks — Section 9(2)(b) is a reliable bar.
- Steer clear of facially offensive or obscene matter — even if the standard is fuzzy, examiners refuse the obvious.
- Edgy branding is a gamble. The obscenity bar’s uncertainty cuts both ways; do not build a brand on a mark that may be refused.
Frequently asked questions
Can a religious name be trademarked in India? Generally no. Section 9(2)(b) bars marks likely to hurt religious susceptibilities, and the Supreme Court refused “Ramayan” as a holy-book name.
What does Section 9(2)(c) prohibit? Marks comprising or containing scandalous or obscene matter — though the terms are undefined and applied subjectively.
Is the obscenity bar settled? No. It intersects with free-speech rights (as the US Slants case shows) and remains contested.
Which absolute ground is most common? Section 9(1) — non-distinctiveness/descriptiveness — appears far more often than the 9(2) grounds.
Legislation referred to
- The Trade Marks Act, 1999