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CS Professional · Intellectual Property Rights - Law and Practice · Types of Intellectual Property

Mehta Foods applies to register 'SWEET' as a trademark for sugar. The Registrar objects that the word is directly descriptive of the goods' character. Mehta argues it has used the word for 12 years across India with heavy advertising and a large customer recognition. What is the most accurate position under the Trade Marks Act, 1999?

Registration may be allowed because a descriptive mark can overcome the absolute ground of refusal if, before the application date, it has acquired a distinctive character through use or is a well-known trade mark. The Registrar must be satisfied by evidence of such use.

  1. ARegistration must be refused because descriptive words can never be registered
  2. BRegistration may be allowed if the mark has acquired a distinctive character through use before the application dateCorrect
  3. CRegistration is allowed automatically after 10 years of use
  4. DRegistration is allowed only if Mehta first obtains a licence from the Registrar for descriptive words

Explanation

Absolute grounds for refusal such as descriptiveness do not apply if the mark has acquired distinctiveness through use before the date of application. This is acquired distinctiveness or secondary meaning. There is no automatic registration after a fixed number of years, and no licence concept exists.

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