In trademark law, a disclaimer means the trademark owner gives up exclusive rights over certain parts of a mark that are not distinctive or not registrable by themselves. Even though the trademark as a whole is registered, the owner cannot claim monopoly over those disclaimed elements.
The Bangladesh Trademarks Act, 2009 recognizes this principle. Section 14 specifically deals with trademark registration subject to disclaimer.
Legal Provision (Section 14 – Trademarks Act, 2009)
A trademark may contain:
- Non-registrable elements – Parts of the mark not separately registered or not applied for registration.
- Non-distinctive features – Generic or descriptive matter that is common in the trade.
In such cases, while granting or maintaining registration, the Tribunal may impose a condition that the proprietor shall not claim exclusive rights over that part.
👉 This means:
- The whole mark is protected.
- But the proprietor cannot stop others from using the generic/disclaimed part.
Practical Examples of Disclaimer
- If a mark is “SUN FRESH BAKERY”, the word “Bakery” may be disclaimed since it is generic for bakery goods.
- If a logo contains a map of Bangladesh, that part may be disclaimed as it is a common national symbol.
- If a mark is “BEST QUALITY RICE”, the words “Best Quality” may need to be disclaimed as they are descriptive.
Effect of Disclaimer
- No impact on ownership of the full mark – The trademark owner still owns the mark as a whole.
- Limits enforcement rights – They cannot stop others from using the disclaimed words or elements.
- Protects fairness in trade – Prevents one business from monopolizing common or descriptive terms.
Important Point
The law clearly states that disclaimer does not affect other rights of the proprietor.
- Example: If a mark “SUN FRESH BAKERY” is registered with disclaimer on “Bakery,” the owner still has full rights on “SUN FRESH BAKERY” together.
Why Disclaimer is Important in Bangladesh
- Ensures balance between granting protection and keeping common terms free for public use.
- Prevents overly broad claims that could harm fair competition.
- Encourages applicants to design unique and distinctive marks.
✅ In Summary:
Trademark registration with disclaimer means you get protection for your mark, but you cannot claim monopoly over generic, descriptive, or non-distinctive parts. This protects both the brand owner and the public interest.
Comparison: Trademark Registration With vs Without Disclaimer
| Aspect | With Disclaimer | Without Disclaimer |
|---|---|---|
| Scope of Rights | Rights are limited – the proprietor cannot claim exclusive rights over the disclaimed parts (e.g., generic/descriptive words). | Full rights over the entire mark as registered, without limitation. |
| Examples | “SUN FRESH BAKERY” → Disclaimer on “Bakery”. | “COCACOLA” (fully distinctive mark, no disclaimer). |
| Enforcement | Cannot stop others from using the disclaimed part separately. | Can enforce the entire mark, including all its elements. |
| Public Interest | Keeps common/ descriptive words free for general trade use. | Might restrict public use if all parts are distinctive and owned by one proprietor. |
| Risk in Registration | Often imposed by the Trademark Office/Tribunal when a mark contains descriptive or generic terms. | Usually for invented/unique marks that are inherently distinctive. |
| Protection | Protects the mark as a whole, but not the disclaimed part individually. | Protects the entire mark fully, including all components. |
Frequently Asked Questions (FAQ)
Q1: What is a trademark disclaimer in Bangladesh?
A trademark disclaimer means the applicant gives up exclusive rights over non-distinctive or descriptive parts of a mark. The mark as a whole is protected, but the disclaimed portion cannot be monopolized.
Q2: Why does the Trademark Office require disclaimers?
The Bangladesh Trademark Office requires disclaimers to ensure that generic or descriptive terms remain available for all traders. It prevents one party from claiming exclusive rights over common words like “Bakery” or “Best Quality.”
Q3: Does a disclaimer reduce my trademark protection?
No. The trademark owner still enjoys full rights over the entire mark. A disclaimer only limits rights over the specific generic or non-distinctive part. The overall trademark remains valid and enforceable.
Q4: Can I register a trademark in Bangladesh without disclaimer?
Yes, if your mark is distinctive and does not contain descriptive or generic elements. For example, invented or coined words like “XEROX” or “COCACOLA” usually do not require disclaimers.
