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Nature of Trade Mark

The Mark can be classified into following four different categories:-

  1. Marks as are inherently distinctive
  2. Marks as are not inherently distinctive but have acquired distinctiveness on account of use and reputation
  3. Marks as are generic, descriptive, laudatory or have direct reference to the character and quality of the goods/services
  4. Marks consisting of geographical names

Inherently distinctive marks are those that are in the nature of invented word these have no assigned meaning and afford the highest protection in law. Such marks do not have any direct or indirect reference to the character or quality of the goods and do not consist of common names, surnames or words of ordinary language. The trademarks like CALTEX and KODAK fall in this category.

There are marks, which are not inherently distinctive in their nature but may be capable of distinguishing goods or services of a particular person from that of others or have the capacity to acquire distinctiveness. Such marks may not be inventive but possess the capacity or ability to distinguish. The marks which possess a capacity or ability to distinguish (though not inherently distinctive) can acquire the status of a distinctive character on account of exclusive use and reputation acquired in the course of trade on account of use and publicity. The marks consisting of personal names, surnames or words of ordinary languages are capable of acquiring distinctiveness and are capable of distinguishing the goods of one manufacture from those of others provided such names, surnames or words do not have any direct reference to the character or quality of the goods. The marks having direct reference to the character or quality of goods or as are indicative of geographical indications are neither inherently distinctive nor capable of distinguishing nor acquiring distinctiveness by secondary significance so as to qualify to be described as trade marks. The words, which convey a direct reference to the character and quality of goods or services, are known as descriptive marks. If the marks convey an indirect reference to the character or quality of the goods, the same may qualify to be a trademark.

Generally, the geographical names are considered to be incapable of performing the role of a trademark. The geographical names, which in their ordinary signification, are known or recognized for a particular kind or quality of goods or services are not capable of performing the role of a trademark. However, if a place in its ordinary significance is not known for a particular kind or quality of goods for which its name is used, it can still perform and is capable to perform the role of a trade mark. There are a large number of geographical names which have been considered and held to be capable of performing the role of a trademark such as CHAMBAL, GUJARAT, BHARAT, etc.

There may be marks which would not fall in either of the categories (i) to (iv) but may consist of other elements or combination thereof, for example, a word mark standing alone may not qualify to perform role of a trade mark but when used in a distinctive manner in combination with other elements, may become capable of being a good trade mark.

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