Abstract

Trade marks are distinct from other forms of intellectual property, in that the subject matter that they seek to protect is reputation, created through effort, as opposed to a pure creation of mind. Nevertheless, they have become an integral part of the intellectual property regime. This is because of the ease of protection of trade marks through a registration scheme under IP laws, as opposed to common law protection through the tort of passing off. However, protection under the IP regime requires that a trade mark overcome several grounds on the basis of which they may be refused. These grounds have emerged through deliberation by legislatures and in various landmark judgments. ‘Public ordre and morality’ forms one of these grounds, however the scope of this ground is ambiguous, largely because the nature of morality is ambiguous. It differs from culture to culture, generation to generation. Trade however, is global. Expansion of businesses into various countries other than their own has brought up some intriguing questions regarding the acceptability, and validity of the ground of ‘public ordre and morality as a bar to registration. While some jurisdictions have dealt admirably with the meaning and scope of this term, a greater and uniform understanding of the term would be invariably beneficial to global business prospects.

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