Secondary trade mark India

Secondary trade mark India



Where a trade mark consists of several features, the exclusive right of registration is in respect of the mark as a whole. (Section 17). However, a mark may acquire a distinctive character as a result of its being used as part of, or in conjunction with, another mark.  There is no requirement for a non-distinctive mark to have been used alone before it can be registered on the basis of acquired distinctiveness, but where such a mark is used alongside another distinctive sign, the burden on the applicant to show that the non-distinctive mark has come to be seen as a secondary trade mark will be greater. See TREAT case, [1997] E.T.M.R. 118.  Non-traditional marks, particularly colours and the appearance of the goods or their packaging, often pose particular problems. Such marks are seldom used as theprincipal means of distinguishing the trade source of the goods or services. Nevertheless, they are capable of being used as secondary trade marks.