Being low in descriptiveness makes a trademark high in exclusivity.
There is something about the recently concluded first season of Sony Liv’s reality TV show Shark Tank India that would bother intellectual property (IP) lawyers. While pitching their business ideas to the sharks (potential investors forming the panel of judges) in the hope that they would invest in their ventures, the participants (upcoming startup entrepreneurs) are baring many truths about the strength of their IP – or the lack thereof.
Notably, trademarks chosen by most of the participants for their respective products or services is reflective of the lack of legal strategy and advice that has gone into their creation.
Choosing a trademark is an important exercise by an entrepreneur – it is what the customers identify the entrepreneur with, be it on a supermarket shelf or on the entity’s signboard or business cards. The usual tendency of entrepreneurs is to adopt trademarks that reveal the nature of their products or services to the users.
Unfortunately, this is the very thing that is barred by trademark law – a trademark is weak if it is descriptive of the goods or services for which it is used, or if it indicates the kind, quality, intended purpose or geographical origin of the goods and services. The more a trademark is silent about what the business does, or its products are made of or where it comes from or what purpose its products or services serve, the better it is. It is best to leave it to the product or service itself to convey these attributes. Being low in descriptiveness makes a trademark high in exclusivity. Unfortunately, entrepreneurs often do the reverse, rendering their trademarks non-exclusive and commonplace.