Abbott Laboratories, Chicago, USA based pharmaceutical company was founded in the year 1888. The Company marketed the medicinal preparation of the drug Camylofin Dihydrochloride with Paracetamol as EASYJET. The word EASY

Descriptive trademarks are generally prohibited from being registered under Section 9 (1) (b) of the Indian Trade Marks Act, 1999 with the exception to the rule being that the mark in question has acquired distinctiveness or secondary meaning by virtue of long-standing use and the resulting recognition. Illustrations of marks which are clearly descriptive but registered due to acquired distinctiveness are: A descriptive mark, over a sustained period of extensive and uninterrupted usage and substantial promotion may acquire the status of a 'well-known' mark under the scope of Section 2 (1) (zg) of the Act and as such, would be considered capable of registration. Some marks which were held as 'well-known by Indian courts are WHIRLPOOL, PEPSI. Thus, the default position in India is that a mark which is descriptive cannot be registered unless it has acquired distinctiveness or it has acquired a secondary meaning. In ITC Limited v. Nestle India Limited 2017 (70) PTC 66 (Del) The Court observed that when a word was only descriptive of character of goods, no protection can be claimed for use of such word, but if a word is known for its distinctiveness secondary meaning, such word is entitled to get protection. The evidence for the descriptive mark should be filed at the earliest. After the trademark has been sustainably used, the position established through large sales, publicity and possibly time evidence should be filed to avoid cancellation. Indian courts have consistently maintained that such marks are registrable only if they have acquired distinctiveness or a secondary meaning. The Supreme Court in Godfrey Philips India Limited v. Girnar Food & Beverages (P) Ltd (2005) , examining whether the expression Super Cup (for a tea brand) was protectable as a trademark, held that a descriptive trademark may be entitled to protection if it has assumed a secondary meaning and is identified with a particular product or as being from a particular source. While reiterating this position, Indian courts have sought to construe this protection narrowly, i.e. limiting it to a particular category of products or services. In Cadila Healthcare Ltd. v. Gujarat Co-operative Milk Marketing Federation Limited and Ors (2009) , a division bench of Delhi High Court held that the mark Sugar Free being highly descriptive could not be protected beyond the goods for which it had been used and with which it was connected. The court agreed with the trial court that the proprietor of the mark was not entitled to restrain any descriptive "non-trademark use" of the expression "sugar free". Similarly, in Marico Limited v. Agro Tech Foods Limited (2010) , Delhi High Court held that the appellant, owner of the registered marks Losorb and Lo-Sorb, could not assert a monopoly over the term "low absorb" for edible oil products. Further, the court held that a descriptive mark may acquire a secondary meaning if the mark is used by one person undisturbed for a long period. Although via several decided cases, it has been shown that a common descriptive word can acquire a secondary distinctive meaning by use in relation to the goods. However it can be extremely difficult to establish that such word has become distinctive in fact and has acquired a secondary meaning different from its natural meaning. The difficulty becomes even greater when the mark is not only descriptive but also contains the name of the product such as Diabolo for a top or shredded wheat etc. This difficulty may sometime be overcome if the alleged trademark is in fact a description of goods but the public identifies it as a fancy word and not a descriptive word. The onus is on the applicant to show that the word which is primarily descriptive of quality of goods has become descriptive. The onus must be discharged by the applicant in respect of every article to which the trademark is applied and not just for one of the many products to which the mark is applied. When the case is on the border line, the registrar will usually refuse to grant the registration, however, he will not try to discover reasons for refusing the registration. However, the trader should get a fair opportunity for establishing his right to the statutory protection. In determining whether a mark has acquired a distinctive character because of long and continuous use, the competent authority must make an overall assessment of the evidence that the mark has come to identify the product concerned as originating from a particular source. In assessing the distinctive character of a mark in respect of which registration has been applied, the following should be taken into account: The market share held by the mark. How intensive, geographically, widespread and long, standing use of the mark has been. The amount invested by the undertaking in promoting the market. The proportion of the relevant class of persons who identify the goods to be coming from a particular undertaking Statements from various trade and commerce associations.