Open Access Research Article
JUDICIAL APPROACH TOWARDS ACQUIRED DISTINCTIVENESS IN INDIA: A COMPARATIVE ANALYSIS WITH RESPECTIVE TO USA AND INDIA
Abstract
The concept of
distinctiveness refers to the capacity of a trademark to identify and
distinguish the goods and services. When it comes to registration, if the goods
are inherently distinctive, the process of registration should be as relatively
easy as a trademark and should have a distinctive character that sets it apart
from the existing goods and services. In the case of generic or descriptive
marks, the process of registration becomes difficult unless it is proved that
the mark is being distinguished or has a distinctive meaning. This gives rise
to the concept of acquired distinctiveness, as these marks should have acquired
distinctiveness over time by the usage of such marks extensively and
exclusively in the marketplace. In India, Section 9(1) of the Trademark Act
deals with absolute grounds for refusal and also covers the aspect of acquired
distinctiveness.
To establish the acquired
distinctiveness, the mark must be used in the Indian period for a significant
period. When we take the case of the US, they follow a use-based application
for registration and they have a specific duration for considering the distinctiveness
factor, the person who submits the declaration for the usage of the trademark
that has been done before the registration will be registered. Further, they
have established the guidelines for proving acquired distinctiveness.
In India, it is done
through the judiciary which plays a vital role in interpreting the acquired
distinctiveness of goods and services. As it mostly depends on the consumer
perception and how the mark has been recognized as an indicator of the goods or
services the acquired distinctiveness can be claimed. This creates an
opportunity to re-visit the judicial interpretation of acquired distinctiveness
and the possibility to see the necessity of guidelines to prove acquired
distinctiveness.
Published Paper
Author Details
Authors: NARAYANA MRegistration ID: 1013514 | Published Paper ID: IJLRA13514Approved ISSN: 2582-6433 | Country: Delhi, India
Article Information
JUDICIAL APPROACH TOWARDS ACQUIRED DISTINCTIVENESS IN INDIA: A COMPARATIVE ANALYSIS WITH RESPECTIVE TO USA AND INDIA
Authors: NARAYANA M
- Journal IJLRA
- ISSN 2582-6433
- Volume 3
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- AbbreviationIJLRA
- ISSN2582-6433
- AccessOpen Access
- LicenseCC 4.0
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