Not all signs can be trademarks. There are a number of legal reasons why a sign cannot be a trademark. The court can decide that a trademark is not valid for one of these reasons and declare it to be null and void. The following is an explanation of the main reasons for nullification, the so-called grounds for exclusion.
- The sign is not distinctive. This is the most common ground for exclusion. A trademark is a sign which distinguishes company's goods or services. Therefore, a sign which is unable to do this is not a trademark. If you would like to find out more, read the additional information under "Lack of distinctive character".
- The sign is deceptive: A logo showing, for example, coffee cannot be registered and used for something else (such as tea or sleeping tablets) because this could then deceive or mislead the public.
- A number of specific grounds for exclusion apply to shape marks. These are intended to avoid any overlapping with other intellectual property rights (such as design law and patent law). Therefore, the shape of, for example, a chair or a lamp will be regarded as a design rather than a shape trademark. A shape cannot be a trademark if it (1) results from the nature of the goods themselves, (2) gives a substantial value to the goods, or (3) is necessary to obtain a technical result.
- The filed trademark consists of flags, arms and other official emblems of states or international organizations which are registered in accordance with Article 6 of the Paris Convention. This sort of trademark can only be registered after permission has been granted by the state or organization in question.
- The trademark is contrary to public policy or accepted principles of morality. In practice this is very rare.
In accordance with the trademark law of Sint Maarten, these marks have to be rejected for registration by the BIP SXM. One should also bear in mind that registration of such a trademark, for example if the Bureau made a mistake during the application phase, may be contested in court at a later point in time.