Acquired Distinctiveness As Criteria For Trademark Protection
- IJLLR Journal
- Oct 18, 2025
- 1 min read
Diana Das, LL.B. (2023-2026), National Law University, Odisha
Introduction
Trademarks are essential commercial identity tools that allow consumers to identify the source of goods and services in the market. Although distinctive marks per se, i.e. fanciful or arbitrary words, have instant protection, descriptive or indistinctive marks can only be registered if they have gained distinctiveness by use. Also referred to in common law as secondary meaning, this doctrine secures the marks that have, through usage over time, become closely identified with one trader and which deserve legal protection.
In India, the doctrine is enshrined in ‘Section 9(1) of the Trade Marks Act, 1999’, which prohibits registration of descriptive or generic marks unless they have “acquired a distinctive character.” The doctrine has numerous challenges. In contrast to the US or EU, where formal tests and survey proof are regularly employed1, “Indian courts and the Trade Marks Registry” have not taken uniform standards of evidence on board. Applicants may be called upon to produce voluminous records of sales, advertising spend, and invoices, but such information is not necessarily confirmation of consumer association. Furthermore, globalization and e- commerce have added new dimensions, including trans-border reputation and online consumer recognition, that further complicate the evidentiary process.
This paper discusses acquired distinctiveness as a theory and as a practice. It discusses statutory law, reviews judicial interpretation in India and overseas, and outlines modern issues. Finally, it contends that the Indian regime needs more apparent evidentiary standards and international best practice harmonization in order to ensure that brand protection is weighed against the maintenance of public domain and fair competition.
