Introduction

Intellectual property (IP) refers to the legal rights linked to creations of the mind. Among its forms, trademarks requiring registration are among the most valuable in both commercial and legal contexts, as they help build brand recognition and consumer trust. A trademark can be a word, symbol, or combination of both, used by a company to distinguish its goods or services from others an ability legally protected through the principle of trademark distinctiveness. In today’s global economy, where businesses increasingly rely on brand identifiers to secure market share, understanding the definition, types, and the crucial role of trademark distinctiveness becomes essential. This includes how trademarks function globally and how they serve as tools to protect both brand identity and market position.

Now that we understand what Intellectual Property is, let’s explore why it matters. IP helps customers distinguish one product from another just like a trademark does. When people see a logo, they instantly identify whether a specific company made the product. For example, a bitten apple on a smartphone tells them it’s from Apple Inc., while a simple tick mark on clothing immediately points to Nike. These quick associations rely on trademark distinctiveness, which allows consumers to link visual symbols with a brand’s identity and trust.

Logos and symbols on these products represent a form of Intellectual Property (IP). We recognize them as the trademarks of their respective companies. These visual elements establish brand identity and help consumers instantly identify the source. Companies use their logos and symbols as powerful branding tools often their most valuable assets. Many well-known businesses have built brands worth tens or even hundreds of billions of dollars through strong trademark distinctiveness and consistent market presence.

Now we dive into what are Trademarks?

A trademark identifies and distinguishes the source of a company’s goods or services using a word, phrase, symbol, design, or a combination of these elements. According to the Trade Marks Act, 1999, a “trade mark” means a mark that one can represent graphically and that can distinguish one person’s goods or services from another’s. This includes the shape of goods, their packaging, and combinations of colors. It also covers devices, brand names, headings, labels, tickets, signatures, words, letters, numerals, and various forms of packaging or color arrangements.

Let’s now look at the legislation. India signed two major international treaties like The Paris Convention (1883) and the TRIPS Agreement (1994). Based on these, the Indian government enacted the Trade Marks Act, 1999. This Act lays down the rules and regulations that individuals and businesses must follow to register and protect trademarks in India.

Understanding Trademarking and the Role of Trademark Distinctiveness in Different Types of Trademarks

So, Trademarking is the only way to legally protect your ownership of your brand and here are a few reasons why you should trademark your brand: When you trademark your brand, you practically stamp out the risk that someone else challenges your ownership of your brand; this will save you a lot of money on litigation, With a registered Trademark, you can go after anybody who can take the free lift on your Trademark or brand to sell their product and services, and the awesome part is, in some cases, you don’t even need to go to court; a basic notice of claim will be enough, When you Trademark a business or brand, you are generating an asset that you can sell, license or franchise to anyone, which in itself is a benefit of a Trademark.

Initially, there are five types of Trademarks, namely: Generic, Descriptive, Suggestive, Arbitrary and Fanciful, and the main focus for this blog is on Generic marks and Fanciful marks due to their differing nature.

Generic Marks

A generic mark is a name provided by the general population as a general mark for a specific type of product or service. For instance, the word “apple” is generic if we apply it to the fruit, because no other term is even closer to describing it. However, when used regarding non-fruit items such as electronic devices, “apple” is not generic. Genericide occurs when consumers gradually start using a trademarked term or phrase as a common name for a type of product or service. Over time, this widespread and indiscriminate usage strips the term of its uniqueness, making it ineligible for trademark protection. For example, consumers turned once-protected trademarks like “Granola,” “Popsicle,” and “Rollerblade” into generic terms, causing them to lose their legal protection.

Several trademarks have lost their distinctiveness due to genericization. Philips registered “Air Fryer” as a trademark in the European Union and other jurisdictions, but U.S. authorities nullified it by deeming it descriptive. Bayer originally held the trademark for “Aspirin” and maintained its protection in nearly 80 countries including much of Europe and Canada but the term became generic in the United States. Similarly, the Otis Elevator Company trademarked “Escalator,” but lost its trademark protection in 1950 when the term entered common usage. “Kerosene” is a type of liquid that burns with a blue flame.

In 1854, Abraham Genser filed a trademark for a combustible hydrocarbon liquid derived from the Greek word ‘kerns’, which he used to produce wax. The authorities granted the North American Gas Light Company and the Downer Company exclusive rights to use the term for a certain period, but over time, the public adopted it as a common term with no specific company association. The “App Store” serves as a prominent platform to search for and download iOS apps on your iPhone or iPad. In 2011, Apple filed a lawsuit against Amazon for allegedly confusing consumers with the “Appstore for Amazon” branding, but ended the suit in 2013.

Case Laws

In the case of Dabur India Limited vs. Emami Ltd., the Hon’ble Delhi High Court held that the generic word cannot enjoy trademark exclusivity, specifically referring to the term – Chyawanprash, the court proceeded to rule on a question of law about that matter, and not on whether the concerned rights holder may no longer exercise exclusive rights over the generic word –  chyawanprash.

In addition, the hon’ble Madras High Court in the matter of Mr A.D.Padmasingh Isaac and m/s Aachi Masala Foods (P) Ltd vs. Aachi Cargo Channels Private Limited, held that granting exclusive right over a generic term to a single proprietor would be unfair to the other proprietor in the trade and the same would be against the principles of natural justice. However, the court acknowledged the use and registration of a composite generic trademark, which denotes the combination of a generic term with other terms. The Hon’ble Supreme Court also acknowledged this in Parakh Vanijya Private Limited vs. Baroma Agro Product and Others, where it allowed a commercial enterprise to register the mark ‘Baroma Malabar’ despite opposition from the appellant holding the registered trademark ‘Malabar Gold’. The Court clearly stated that no single commercial enterprise can claim exclusive rights over the generic term ‘Malabar’.

Now we will discuss about Fanciful mark and what makes it different from the Generic mark.

Fanciful Mark

The most powerful type of trademark is a trademark known as “fanciful”. Fanciful marks consist of entirely imaginary names or words that do not exist in the English language. They do not serve a grammatical function except to identify the goods or services related to them. The popular soft drink brand, “Pepsi,” is an example of a coined fanciful trademark. The term has no meaning other than its association with soft drinks. Another very well-known example, that skirts the line between fanciful and suggestive, is “Google.” Originally conceived as a unique trademark, “Google” is synonymous with looking something up on the internet. They would have to be very careful to avoid it going generic, and being used too informally, like ‘Google it,’ that could lessen the distinctiveness of the mark, as previously discussed in genericide’s doctrine.

Fanciful marks are very valuable in terms of trademark strength because they are naturally non-descriptive. Understandably, one frequent cause of trademark rejection is that a mark is classified as ‘merely descriptive’ about the products or services it describes. To avoid this pitfall, fanciful marks use invented terminology that suggests brand characteristics or product qualities without explicitly stating them. When a mark also includes suggestive elements, it becomes even more powerful and deserving of protection. Organisations that create unique and creative trademarks should be commended for building robust and legally protected brand assets.

Case Laws

In Atomberg Technologies Pvt. Ltd. v. Jogaram Sirvi (2023), the Bombay High Court recognised ‘Atomberg’ as a well-known trademark. The court held that the brand, active in the home appliance sector since 2012, had earned widespread goodwill and reputation. Justice Chagla ruled that Atomberg met the criteria under Sections 11(6) and 11(7) of the Trade Marks Act. This ruling granted the mark the highest level of trademark protection under Indian law. The court also acknowledged it as a distinctive and unique brand under Section 2(1)(zg). This case clearly shows how strong and hard-to-infringe fanciful marks can be.

Conclusion

Trademarks are powerful assets that protect brand goodwill and build equity over time. They act as property rights and carry commercial value through licensing, franchising, or sale. The law treats generic and fanciful marks very differently. Generic marks lack distinctiveness and cannot be protected. Fanciful marks, on the other hand, get the strongest protection. Their uniqueness makes them highly distinctive and valuable for brand identity.

Indian courts now apply a “law and economics” lens to trademark law. They try to balance commercial rights with consumer protection. Courts prevent monopolising generic terms. At the same time, they protect brands with proven trademark distinctiveness. For businesses, understanding trademark distinctiveness is crucial for legal strength and brand survival. Unique, registered marks built on distinctiveness offer a clear edge in the market.

References

• Trade Marks Act, 1999
• Dabur India Ltd. v. Emami Ltd (2004) 112(2004)DLT73, 2004(75)DRJ356, 2004(29)PTC1(DEL)
• A.D. Padmasingh Isaac and Aachi Masala Foods (P) Ltd. v. Aachi Cargo Channels Pvt. Ltd  (2013) AIR 2014 MADRAS 2
• Parakh Vanijya Pvt. Ltd. v. Baroma Agro Product and Ors (2018) AIR 2018 SUPREME COURT 3334
• Atomberg Technologies Pvt. Ltd. v. Jogaram Sirvi (2023) SCC OnLine Bom 2665
• Mondaq, Lost In The Crowd: The Life of Generic Trademarks, (April 28, 2022/last visited May 5, 2025)  https://www.mondaq.com/india/trademark/1194548/lost-in-the-crowd-the-life-of-generic-trademarks
• Consumer Reports, 15 Product Trademarks That Have Become Victims of Genericide, (July 10, 2024/last visited May 5, 2025) https://www.consumerreports.org/consumerist/15-product-trademarks-that-have-become-victims-of-genericization
• The Paris Convention for the Protection of Industrial Property (1883)
• The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (1994)