Section 9(5) in The Trade And Merchandise Marks Act, 1958
(5)In determining whether a trade mark is distinctive or is capable of distinguishing as aforesaid, the tribunal may have regard to the extent to which-(a)a trade mark is inherently distinctive or is inherently capable of distinguishing as aforesaid; and(b)by reason of the use of the trade mark or of any other circumstances the trade mark is in fact so adapted to distinguish or is in fact capable of distinguishing as aforesaid.
