A confectionery company VITA was launched in India in 1940 which owned many registered trademarks in India and abroad. The Company is particularly famous for its "Gluco" biscuit. With its unique color scheme and design o

Trademark distinctiveness is a foundational principle in trademark law, playing a crucial role in the registration and protection of trademarks. It refers to the ability of a mark to identify and distinguish the source of goods or services from those of others. The concept is not merely a legal formality; it is essential because the distinctiveness of a mark determines its eligibility for protection. Without a certain level of distinctiveness, a mark may be deemed incapable of serving its primary purpose indicating the source of a product or service. Distinctiveness exists on a spectrum, which ranges from arbitrary and fanciful marks, known for their strong identity, to generic marks, which are inherently weak. Arbitrary marks, such as "Apple" for computers, have no relation to the goods being sold, making them highly distinctive and protectable. Fanciful marks, such as "Kodak" for photography, are invented words that carry no meaning until associated with a brand, resulting in robust protection. As we move along the spectrum, suggestive marks imply something about the product but require consumer thought to understand the connection. Examples include "Coppertone" for sunblock, suggesting an association but not clearly defining the product itself. Conversely, descriptive marks provide specific information about a product and inherently possess lower distinctiveness. They can obtain protection only if they acquire secondary meaning, where consumers begin to associate the mark with a specific source. At the far end of the spectrum are generic terms, which refer to a common category of goods or services. Marks classified as generic cannot be registered or protected as trademarks, as they lack the distinctiveness needed to identify the source effectively. As under the old law in determining whether a trade mark is capable of distinguishing, the tribunal should have regard to the extent to which the mark is inherently capable of distinguishing and also the extent to which it is in fact capable of distinguishing by virtue of use of the mark or of other circumstances. The selected mark should be capable of being represented graphically (that is in the paper form). It should be capable of distinguishing the goods or services of one undertaking from those of others. It should be used or proposed to be used as a mark in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services and some person having the right either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person.