Entrepreneurs end up choosing a name for their business or product line that are too close to an existing trademark used for similar goods or services. However, similarity of the name or likelihood of confusion is not the only factor to consider when adopting a trademark.

One should also consider the inherent distinctiveness of their trademark and more importantly to find out whether one's trademark will get rejected on the grounds or mark being generic or merely descriptive.

Merely descriptive marks may be capable of registration on the Principal Register if they have acquired secondary meaning, or acquired distinctiveness. Without such acquired distinctiveness, a merely descriptive mark may be rejected by the Examiner.

Section 9 of the Trademark Act, 1999 discusses Absolute grounds for refusal. Such descriptive trademarks which designate the kind, quality, quantity, intended purpose etc shall not be registered. Provided that a trade mark shall not be refused registration if before the date of application for registration it has acquired a distinctive character as a result of the use made of it or is a well-known trade mark.

The issue before the court was whether the name and style of "AAJ TAK" and its logo is a generic term and as such is not the monopoly of any particular person either in relation to the news programme or otherwise. The court observed that even if the words "AAJ TAK" are descriptive in nature and even if they have a dictionary meaning, together it is still coined word of the plaintiff and has acquired a secondary meaning by virtue of prior, continuous and extensive use and therefore the combination of the two words "AAJ TAK" cannot be used by any other user.



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