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What are descriptive trademarks and how does one go about choosing the right one carefully? By Arjita Bhalla
A descriptive trademark is typically a weak trademark because it describes the goods and services being offered by the brand owner. Small companies and startup businesses want to pick a domain name which describes their products and services. Chances are that other businesses have chosen the same or similar descriptive trademark name for their goods and services. Moreover, under the Trade Mark Act, 1999, there is no protection granted to such descriptive marks. Here is a pointer to what a descriptive mark is. Often enough, a question arises about how to protect a descriptive trademark as ‘intellectual property’ (IP). To answer such questions, let us first understand what a descriptive mark IP is.
DEFINING A DESCRIPTIVE TRADEMARK
A descriptive trademark means a mark which depict the products or services provided under it and for which it seeks protection or is already registered. Effectively, a descriptive trademark means a mark which consists exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service.
Small companies and startup businesses often fall into the trap of wanting to create a brand which depicts the kind of services or the product sold under it for its end customers so that they can relate to such brands. The thinking is that if they pick a descriptive word for their company name they will get more business.
Descriptive trademarks are generally prohibited from being registered under Section 9 (1)(b) of the Indian Trade Marks Act, 1999 with the exception to the rule being that the mark in question has acquired distinctiveness or secondary meaning by virtue of long-standing use and the resulting recognition.Illustrations of marks which are clearly descriptive but registered due to acquired distinctiveness are Apple for computers, iPhone, iPad, etc; Pizza Hut for pizzas; Lotus for peas, Bengal gram, etc; Sunflame for gas stoves and Jaguar for car.
Thus, while keeping the name of a brand, it must be a balancing act. At one end it should be unique as it should not relate to the services provided or goods
sold under it. And on the other hand it must be strong enough to not be copied by others in any manner whatsoever.