Friday, September 19, 2014

Distinctiveness in Trade Marks

It is a wide known fact and generally accepted concept of law, that for a mark/label/logo to be worthy of Trade Mark Protection, there should be a level of distinctiveness that the proposed mark/logo/label projects or promotes in the first place.

Distinctiveness has always been classified under the broader spectra of Inherent Distinctiveness, and Acquired Distinctiveness. It is a futile exercise to explain what can be categorized as Inherently Distinctive, like what Wrangler is to Jeans! The concept refers to a scenario where any name is arbitrary, fanciful and sets apart itself from the rest in the relevant product or service market.

On the contrary, suggestive or descriptive marks are not inherently distinctive; only when they achieve a degree of secondary meaning, when they acquire distinctiveness, can Trade Mark Protection be extended to such marks. India, like most other nations, allows for certain marks to be registered when satisfying the grounds for acquired distinctiveness; overlooking certain grounds for refusal of registration.

The significance of Acquired Distinctiveness has always been the subject of debate. When a mark gains popularity so much so as to help and let the consumers associate its products and services with the industrial house itself, such use of the mark is said to have acquired distinctiveness, a secondary meaning is attributed to such use, and product recognition by the consumers. The extent of this secondary meaning and acquired distinctiveness is what makes it possible for a mark to enjoy the desired Trade Mark Protection, when under the general circumstances it would have failed to do so.

- By Bagmisikha Puhan