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Law of Trademarks
Previous Year Question Paper with Solution
LLM · Group 3 Law of Intellectual Property and Information Technology
2024-25 Examination
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LLM Group 3 Law of Intellectual Property and Information Technology Law of Trademarks 2024-25 Question Paper with Solutions
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First published on munotes.in on 13 September 2026.
Published by munotes.in, Mumbai.
Model answers written and edited by the munotes.in editorial desk.
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The University does not publish an official answer key for this paper. The answers in this volume are model answers, written to show how a full-mark answer is built. They are a study aid, not an authority on what an examiner marked.
The question paper reproduced here is the paper as set by the University of Mumbai at the 2024-25 examination.
The law in these answers is stated as at September 2026, and four changes date most textbooks on this subject. THE INTELLECTUAL PROPERTY APPELLATE BOARD NO LONGER EXISTS: section 21 of the Tribunals Reforms Act, 2021 omitted sections 83 to 90 with 89A, and sections 92, 93, 95, 96, 99 and 100, of the Trade Marks Act with effect from 4 April 2021, so an appeal from the Registrar under section 91 now goes to the High Court, and an application for removal or rectification under section 47 or 57 goes to the Registrar or the High Court. THE TEXTILE CHAPTER IS GONE: Chapter X, sections 79 to 82, was omitted by section 7 of the Trade Marks (Amendment) Act, 2010 with effect from 8 July 2013, the day Chapter IVA brought the Madrid Protocol into Indian law. THE OFFENCES WERE CUT DOWN ON 1 AUGUST 2024: the Jan Vishwas (Amendment of Provisions) Act, 2023 omitted sections 106, 108 and 109, turned the false representation of a mark as registered under section 107 into a penalty of one half per cent of turnover or five lakh rupees, whichever is less, imposed by an adjudicating officer under the new section 112A with an appeal under section 112B, and left sections 103 to 105, on applying false trade marks and selling goods that bear them, as they were; the Jan Vishwas (Amendment of Provisions) Act, 2026 does not amend the Trade Marks Act at all. AND INDIA JOINED THE NICE AGREEMENT with effect from 7 September 2019, and the thirteenth edition of the Nice Classification has applied since 1 January 2026.
Contents
The questions below are the paper as the University of Mumbai set it at the 2024-25 examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2024-25 examination, reproduced as the University of Mumbai set them, in the order it set them. Nothing has been reworded, added or left out. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 7 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
1."The true test of a trademark lies in its distinctiveness and its ability to distinguish the goods or services of one person from those of another." Critically analyze this statement, discussing the various kinds of trademarks recognized under Indian trademark law.[25]
Answer
For full marks, cover: the instruction is CRITICALLY ANALYSE, so the answer must do two things: show how far the statement is TRUE, which is a long way, and then show where it is INCOMPLETE. Its truth lies in section 2(1)(zb) and section 9(1). Its limits lie in the marks the Act protects for reasons other than distinctiveness, and in the distinctive marks it refuses. Weave the KINDS OF MARKS into that analysis rather than listing them at the end, because each kind tests the statement differently.
Why the statement is largely true
The definition makes distinctiveness central. SECTION 2(1)(zb) defines a TRADE MARK as a mark CAPABLE OF BEING REPRESENTED GRAPHICALLY and CAPABLE OF DISTINGUISHING THE GOODS OR SERVICES OF ONE PERSON FROM THOSE OF OTHERS. A sign that cannot distinguish is not a trade mark at all, whatever else it is.
The first absolute ground enforces it. SECTION 9(1)(a) refuses marks DEVOID OF ANY DISTINCTIVE CHARACTER, which the section itself explains as NOT CAPABLE OF DISTINGUISHING the goods or services of one person from those of another. Sections 9(1)(b) and (c) refuse marks consisting EXCLUSIVELY of DESCRIPTIVE or CUSTOMARY indications, because such words cannot tell buyers which trader's goods they are.
Infringement depends on it. The whole law of infringement asks whether one mark will be taken for another, and Amritdhara Pharmacy v. Satya Deo Gupta, AIR 1963 SC 449, frames the test around the purchaser of AVERAGE INTELLIGENCE AND IMPERFECT RECOLLECTION, that is, around what the marks actually distinguish in his mind.
Distinctiveness can be earned. The proviso to SECTION 9(1) allows registration of a mark that has ACQUIRED A DISTINCTIVE CHARACTER through use before the date of application, and SECTION 32 protects a registration made in breach of section 9(1) if the mark ACQUIRES DISTINCTIVENESS after registration and before challenge. The law rewards the process by which a sign comes to distinguish.
The spectrum of distinctiveness
Marks lie along a SPECTRUM, and their position decides their strength.
Invented or coined words are inherently the most distinctive, because they mean nothing but the product. Neon Laboratories Ltd. v. Medical Technologies Ltd., (2016) 2 SCC 672, protected PROFOL, coined in 1998, and observed that a mark claiming exclusivity should normally be a NEW CREATION, and if an existing word, neither DESCRIPTIVE of the product nor LAUDATORY.
Arbitrary words, ordinary words used for unrelated goods, are also strong. A word like APPLE for computers or SUNFLOWER for fans distinguishes because it has no connection with the goods.
Suggestive marks hint at a quality without describing it, and are registrable though weaker.
Descriptive and laudatory words describe or praise the goods, and are not distinctive without long use. ITC Limited v. Nestle India Limited, 2020 SCC OnLine Mad 1158, held MAGIC MASALA and MAGICAL MASALA LAUDATORY AND COMMON TO THE TRADE for noodles, so no exclusivity could be claimed in them, and the products were told apart by their house marks SUNFEAST YIPPEE! and MAGGI.
Common words used by many traders give narrow protection. Skyline Education Institute (India) Pvt. Ltd. v. S.L. Vaswani, (2010) 2 SCC 142, refused exclusivity at the interlocutory stage in SKYLINE, a common English word in wide use.
Generic words, the names of the goods themselves, can never distinguish, and SECTION 36 shows that even a registered word can lose its protection if it becomes the WELL KNOWN AND ESTABLISHED NAME of the article in the trade.
The kinds of marks Indian law recognises, and how each tests the statement
Word marks, device marks, labels and composite marks. All are within SECTION 2(1)(m). A composite label is judged as a WHOLE, but its common parts carry no monopoly: SECTION 17(2) denies an exclusive right in a part that is COMMON TO THE TRADE or of a NON DISTINCTIVE CHARACTER. South India Beverages Pvt. Ltd. v. General Mills Marketing Inc., 2014 SCC OnLine Del 1953, adds that within the whole a court may give greater weight to a DOMINANT distinctive feature. Here the statement holds: protection follows the distinctive part.
Service marks. Registrable since the 1999 Act for services defined in SECTION 2(1)(z). The same test of distinctiveness applies, as Renaissance Hotel Holdings Inc. v. B. Vijaya Sai, (2022) 5 SCC 1, shows for RENAISSANCE for hotels.
Shape marks. SHAPE OF GOODS is within both definitions, but here the statement begins to fail: SECTION 9(3) refuses a shape that results from the NATURE of the goods, is NECESSARY FOR A TECHNICAL RESULT, or gives SUBSTANTIAL VALUE to the goods, EVEN IF IT IS DISTINCTIVE. The law denies a perpetual monopoly in functional or value giving shapes, which belong to patent and design law, however well buyers recognise them.
Packaging and trade dress. Named in both definitions. Parle Products (P) Ltd. v. J.P. and Co., Mysore, AIR 1972 SC 1359, protected a biscuit wrapper's overall look.
Colour combinations. Registrable, and SECTION 10 lets a mark be LIMITED TO SPECIFIED COLOURS, a limitation that must be taken into account in deciding distinctiveness. A single colour, used alone, is usually too hard to distinguish to register without strong evidence of acquired distinctiveness.
Sound marks and three dimensional marks. Provided for by RULES 26(5) AND 26(3). A sound mark is registrable if it can be represented by NOTATION; distinctiveness is necessary but, again, not sufficient, because GRAPHICAL REPRESENTATION is also required, which is why a distinctive SMELL cannot be registered.
Series and associated marks. Marks differing only in non distinctive particulars may be registered as a SERIES under SECTION 15(3), and confusingly similar marks of one proprietor are ASSOCIATED under SECTION 16 and assignable only together under SECTION 44.
Collective marks. Under SECTION 2(1)(g) a collective mark distinguishes the goods of MEMBERS OF AN ASSOCIATION from others. It distinguishes membership rather than a single trade source, so the statement's "one person" must be read, as SECTION 61(2) requires, as the members of the association.
Certification trade marks. Here the statement is most clearly incomplete. A certification mark under SECTION 2(1)(e) distinguishes goods CERTIFIED as to origin, material, quality or other characteristics from goods not certified. It is used by MANY UNCONNECTED TRADERS and must not be owned by anyone trading in the goods under SECTION 70. It does not distinguish the goods of one person from another's at all, and SECTION 69 disapplies SECTIONS 9(1)(a) AND (c), the very distinctiveness grounds, to such marks.
Well known marks. SECTION 2(1)(zg) and SECTION 11(2) protect well known marks against use on DISSIMILAR goods where there is no confusion about the goods at all, because the use would TAKE UNFAIR ADVANTAGE of or be DETRIMENTAL TO the mark's distinctive character or repute. The protection rests on REPUTATION, not merely on distinguishing.
Domain names. Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd., (2004) 6 SCC 145, held that a domain name identifies a business and has all the characteristics of a trade mark, protected by passing off. The statement holds: the name is protected because it distinguishes.
Where the statement is incomplete: a critical assessment
First, distinctiveness is necessary but not sufficient. A distinctive mark is still refused if it is DECEPTIVE under SECTION 9(2)(a), OFFENSIVE under sections 9(2)(b) and (c), a PROHIBITED EMBLEM under section 9(2)(d), a FUNCTIONAL OR VALUE GIVING SHAPE under section 9(3), a CHEMICAL NAME or INN under SECTION 13, or in conflict with an EARLIER RIGHT under SECTION 11. Khoday Distilleries Ltd. v. The Scotch Whisky Association, 2007 SCC OnLine Mad 1102, upheld the removal of PETER SCOT, a mark distinctive of Khoday's whisky for years, because it was DECEPTIVE.
Second, some marks are protected for more than distinguishing. The DILUTION provisions in SECTIONS 11(2) AND 29(4) protect REPUTATION and the ADVERTISING investment in a mark, beyond any confusion about source. Renaissance Hotel Holdings Inc. v. B. Vijaya Sai insists that section 29(4)'s conditions, including REPUTATION IN INDIA and UNFAIR ADVANTAGE or DETRIMENT, be satisfied TOGETHER, which shows these are distinct values from the capacity to distinguish.
Third, some marks do not distinguish one person at all. CERTIFICATION and COLLECTIVE marks distinguish a STANDARD or a MEMBERSHIP, and the Act adapts or disapplies the distinctiveness rules for them.
Fourth, a registered mark can be lost despite distinctiveness. A mark unused for FIVE YEARS is removable under SECTION 47, and a registration can be defeated by an earlier user under SECTION 34, however distinctive the later mark has become in the registrant's hands.
Fifth, the test is territorial. Distinctiveness is judged among the Indian public. Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd., (2018) 2 SCC 1, refused protection to PRIUS, distinctive of Toyota around the world, because Toyota could not prove it was known in India when the defendants adopted it.
| Kind of mark | Provision | Does distinctiveness alone decide? |
|---|---|---|
| Word, device, label | s.2(1)(m), s.9(1) | Largely yes |
| Service mark | s.2(1)(z) | Largely yes |
| Shape of goods | s.9(3) | No: functional and value giving shapes refused |
| Colour combination | s.10 | Yes, weighed with the colour limitation |
| Sound, three dimensional | Rules 26(3), 26(5) | No: graphical representation also needed |
| Collective mark | s.2(1)(g), s.61 | Adapted: distinguishes members |
| Certification mark | s.2(1)(e), s.69, s.70 | No: distinguishes a standard, s.9(1)(a) and (c) disapplied |
| Well known mark | s.2(1)(zg), s.11(2), s.29(4) | No: reputation protected beyond confusion |
Conclusion. The statement is TRUE AS FAR AS IT GOES. SECTION 2(1)(zb) makes the CAPACITY TO DISTINGUISH the defining quality of a trade mark, SECTION 9(1) refuses marks devoid of distinctive character or consisting of descriptive or customary matter, subject to ACQUIRED DISTINCTIVENESS under the proviso and SECTION 32, and the courts measure strength along a spectrum from INVENTED words, as in Neon Laboratories Ltd. v. Medical Technologies Ltd., to LAUDATORY and COMMON words, as in ITC Limited v. Nestle India Limited and Skyline Education Institute (India) Pvt. Ltd. v. S.L. Vaswani.
But it is INCOMPLETE. Distinctiveness is necessary but not sufficient, since distinctive marks are refused if DECEPTIVE, OFFENSIVE, FUNCTIONAL or in conflict with earlier rights, as Khoday Distilleries Ltd. v. The Scotch Whisky Association shows; WELL KNOWN and REPUTED marks are protected beyond confusion under SECTIONS 11(2) AND 29(4), on the cumulative conditions in Renaissance Hotel Holdings Inc. v. B. Vijaya Sai; CERTIFICATION and COLLECTIVE marks distinguish a standard or a membership rather than one person; and distinctiveness is TERRITORIAL, as Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd. holds. Indian law recognises WORD, DEVICE, LABEL and COMPOSITE marks, SERVICE marks, SHAPES, PACKAGING, COLOUR combinations, SOUND and THREE DIMENSIONAL marks, SERIES and ASSOCIATED marks, COLLECTIVE, CERTIFICATION and WELL KNOWN marks, and protects DOMAIN NAMES by passing off after Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd..
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