Armed with a distinct trademark, David can conquer Goliath

A strong trademark is one which is being named arbitrarily and not descriptive of its products and services. Startups need to do their due diligence to choose a strong trademark, which will be distinct and syncs well in the market. The beauty of trademark is that the proprietor gets the right of use from the day one of first adoption

Trademarks are the face of any organization. In today’s world, where technology and designs compete for markets with little or no difference, the trademark is the only form of Intellectual Property Rights, which makes one’s brand distinct.

A trademark makes an emotional mark in the mind of customers and remains for a long time. It’s a perpetual asset for an organization.

As per a recent World IP Index report, India stands third in global TM filings after China and the US. Many academia, MSMEs and startups are now realizing the importance of trademark filing and have started filing to protect their brand names and make themselves distinct. Trademark registration is also now mandatory for registering in the GEM portal and many other e commerce portals to board new products on their site for sales and trade.

A strong trademark is one which is being named arbitrarily and not descriptive of its products and services. Startups need to do their due diligence to choose a strong trademark, which will be distinct and syncs well in the market. The beauty of trademark is that the proprietor gets the right of use from the day one of first adoption and usage of the mark unlike other IPRs like patent and design, which are the first to be filed. So, the more the mark is used extensively, exhaustively and exclusively, the more it becomes popular.

Recently, TM Atomberg has been recognized as a well-known trademark by the Bombay High Court in a recent judgment. The said trademark ATOMBERG is prominently displayed/depicted/used on all its products, packaging’s, brochures, etc. The recognition, reputation, and goodwill of the trademark Atomberg is associated with the proprietor across all classes of goods and services. Hence the brand Atomberg had enjoyed a personality that is beyond the mere products/services sold or rendered under the said trademark Atomberg.

Atomberg is a coined trademark and hence the court held that it should get the highest degree of protection. Another interesting case is of the Apella games, a small startup, an Indie gaming company which won a major battle against Tech Giant Apple Inc, which tried to block the startup from registering its name and logo with the European Intellectual Office (EUIPO).

The company apellas was founded in 2020 and recently filed their TM on March 17, 2021. The brand name is the English transliteration of the Greek word means people’s assembly.

So, the small David like company argued with the Goliath that APPLE could not prove how the registration of the Apella Games mark would diminish or devalue Apple’s logo and brand. And upholding Apple’s claim will allow trademark owners to monopolize entire words, individual letters, or combinations. Also, the two marks of Apella and Apple are distinct and there is no conceivable event where customers might misconstrue or correlate Appella with Apple.

This will go a long way for small companies to argue on this basis and navigate the market with their distinctive trademark, fostering innovation and contributing to the diversity of the Trademarks.

To conclude, a distinct trademark and a well coined word will always stand the testament against big brands and hence it pertinent to “Chose your brand name wisely to make your business grow nicely.”

(The writer is Head-Legal &IPR Resolute Group of Companies)