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Peps Industries Private Limited vs Kurlon Limited on 16 March, 2020 cites

M/S.Heinz Italia & Anr vs M/S.Dabur India Ltd on 18 May, 2007

However this is not and cannot /should not be so for a trademark which is a descriptive word mark. Some CS(COMM) 174/2019 Page 29 of 39 colour has to be taken for the word „distinctive‟ as found in the proviso to Section 9 from the expression „well known trademark‟ which follows the distinctiveness aspect as found in the said proviso. Courts should ordinarily lean against holding distinctiveness of a descriptive trademark unless the user of such trademark is over such a long period of time of many many years that even a descriptive word mark is unmistakably and only and only relatable to one and only source i.e. the same has acquired a secondary meaning. A case in point is the use of „Glucon-D‟ for 60 years in the recent judgment in the case of Heinz Italia and Another Vs. Dabur India Ltd. (2007) 6 SCC 1. A period of 60 years is indeed a long period of time and thus distinctiveness of the descriptive word mark used as a trademark was accepted, albeit in a tweaked form of the normal descriptive word „Glucose‟. Therefore, when the descriptive trademark is used only by one person undisturbed for a very long period of time, without anyone else attempting to use the trademark during this long period time, a case can be established of a descriptive word having achieved distinctiveness and a secondary meaning.
Supreme Court of India Cites 10 - Cited by 77 - H S Bedi - Full Document
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