Trademarks
Introduction
In today’s competitive marketplace, a trademark is more than just a legal right—it’s a brand’s identity and personality. It not only helps consumers recognize and differentiate products or services but also acts as a powerful marketing tool that creates loyalty and trust. The visual or linguistic mark by which a business is remembered often becomes inseparable from its reputation.
Under Indian trademark law, not every name, word, symbol, or phrase is eligible for registration. The Trade Marks Act, 1999 lays down both absolute and relative grounds for refusing a trademark application. While relative grounds focus on conflicts with earlier marks, absolute grounds deal with the inherent nature of the trademark itself.
Among these, one of the most significant hurdles is descriptiveness. However, the law also recognizes a crucial exception—when a descriptive mark has acquired distinctiveness or a secondary meaning.
Understanding the Concepts
Descriptive Marks
These marks directly describe:
- A feature or quality (e.g., “Cold and Creamy” for ice cream)
- A purpose or function (e.g., “Cleaner” for detergent)
- Ingredients (e.g., “Honey Almond” for cereal)
They are generally not inherently distinctive and are barred from registration under Section 9(1)(b) of the Indian Trade Marks Act, 1999.
Distinctiveness / Secondary Meaning
A mark that initially lacks inherent distinctiveness may become distinctive over time through extensive use and recognition by the public. This is known as acquired distinctiveness or secondary meaning.
Examples:
“Best Buy” – originally descriptive, but now distinctive due to widespread recognition.
“Holiday Inn” – once generic/descriptive, now a strong brand.
Legal Framework: Absolute Grounds of Refusal
The absolute grounds for refusal of trademark registration are provided under Section 9 of the Trade Marks Act, 1999. This section aims to prevent the registration of marks that are inherently unfit to function as trademarks.
Section 9
Section 9(1): Lack of Distinctiveness
A mark shall not be registered if:
- It is not capable of distinguishing the goods or services of one person from those of another;
- It consists exclusively of descriptive elements, i.e., marks that indicate kind, quality, intended purpose, values, geographical origin, etc.;
It consists of terms customary in current language or trade practices.
Section 9(2): Public Interest Considerations
A mark may be refused if it:
- Is deceptive or likely to cause confusion;
- Contains content offensive to religious sentiments;
- Contains scandalous or obscene matter;
- Is barred under the Emblems and Names (Prevention of Improper Use) Act, 1950.
Section 9(3): Functional Shapes
A mark may be refused if it consists exclusively of:
- The shape of goods resulting from their nature;
- A shape necessary to obtain a technical result;
- A shape that gives substantial value to the goods.
The absolute grounds for refusal of trademark registration are provided under Section 9 of the Trade Marks Act, 1999. This section aims to prevent the registration of marks that are inherently unfit to function as trademarks.
Descriptiveness vs. Distinctiveness
Descriptiveness vs. Distinctiveness
A descriptive trademark directly conveys information about the characteristics or qualities of the goods or services (e.g., “Crunchy” for chips or “Sweet” for confectionery). Such marks are generally barred from registration under Section 9(1)(b) because they fail to perform the primary function of a trademark—distinguishing the source.
However, the Act provides an important exception
Proviso to Section 9(1): Acquired Distinctiveness
A descriptive or non-distinctive mark can be registered if, before the date of application, it has acquired a distinctive character as a result of its use or is recognized as a well-known trademark.
In essence, even if a mark is inherently weak, it can become strong over time through consistent use, consumer recognition, advertising, and goodwill
Supporting Provision: Section 32
Section 32 offers post-registration protection, stating that if a mark has been wrongly registered in breach of Section 9(1), it shall not be declared invalid if, before the legal challenge, it has acquired distinctive character due to its use
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