Marks excluded from being registered as a trademark


There are some marks that you just cannot register in South Africa. When deciding on your proposed trademark, please keep in mind that the following exceptions will apply in terms of Section 10 of The Trade Marks Act:

Section Provision
10(1) a mark which does not constitute a trade mark
10(2) a mark which is not capable of distinguishing or is descriptive or generic
10(3) a mark in respect of which the applicant has no bona fide claim to proprietorship, or in respect of which an application has been made in bad faith
10(4) a mark which the applicant has no bona fide intention to use as a trade mark, either himself or through a licensee
10(5) a mark which consists exclusively of the shape, configuration, colour or pattern of goods where such shape, configuration, colour or pattern is necessary to obtain a specific technical result, or results from the nature of the goods themselves.
10(6) a mark which constitutes or includes a reproduction, imitation or translation of a ‘well known’ trade mark for similar goods or services, where such use is likely to cause deception or confusion
10(7) a mark which was applied for mala fide
10(8) a mark which contains the national flag, armorial bearings, state emblem, official sign or hallmark of the Republic,  convention country or any international organisation of which a convention country is a member
10(9) a mark which contains any word, letter or device indicating state patronage
10(10) a mark which is a prohibited mark
10(11) a mark which consists of a container for goods or the shape, configuration, colour or pattern of goods, where the registration of such mark is or has become likely to limit the development of any art or industry
10(12) a mark which is inherently deceptive, contrary to law, or con­tra bonos mores, or the use of which would be likely to deceive or cause confusion or offend any class of persons;
10(13) a mark which, as a result of the manner in which it has been used, would be likely to cause deception or confusion
10(14) a mark which is identical or similar to an earlier registration or application in respect of the same or similar goods or services, where use of the mark would be likely to deceive or cause confusion
10(15) a mark which is identical or similar to an earlier application or application in respect of the same or similar goods or services, where use of the mark would be likely to deceive or cause confusion
10(16) a mark which is the subject of an earlier application as contemplated in paragraph (15), if the registration of that mark is contrary to existing rights of the person making the later application for registration as contemplated in that paragraph
10(17) an identical or similar mark to a registered well known mark, the use of which is likely to take unfair advantage of or be detrimental to the distinctive character or the repute of the registered trade mark, notwithstanding the absence of confusion

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