Introduction – What is a trademark?
Choosing a business name is often the most exciting (and agonising) part of starting a venture. Entrepreneurs brainstorm names over coffee, scribble on napkins, consult friends, and sometimes even turn to astrology. Yet, amid all the creative chaos, one crucial question often gets ignored: "Can I protect this name?"
A business name is more than just a label. It represents goodwill, customer trust, and, if things go well, serious brand equity. In India, the Trade Marks Act, 1999 governs how businesses can legally protect their names. But the Act is not just a lawyer's playground—it provides a very practical framework that helps businesses avoid messy disputes and costly rebranding exercises.
This article explains how to choose and protect a business name in India, with a focus on the strength of trademarks. We will discuss coined, distinctive, descriptive, laudatory, and generic marks, and illustrate why some names thrive while others flounder. Along the way,
Why Trademark Strength Matters?
The "strength" of a trademark is one of the most decisive factors in determining its registrability, enforceability, and long-term value. A weak trademark may slip through registration, but enforcing it against imitators is like bringing a butter knife to a sword fight. On the other hand, a strong trademark can become a fortress, deterring competitors and building lasting brand identity.
Lawyers and courts often describe trademark strength along a spectrum—ranging from the strongest (coined and inherently distinctive) to the weakest (generic). Understanding where your proposed business name falls on this spectrum is the first step toward making an informed choice.
The spectrum of distinctne ss of a trademark
1. Coined Trademarks: The Strongest of Them All
Coined or invented words are the gold standard of trademarks. These are words created solely for branding and have no prior meaning in the dictionary. Because they are unique, they immediately qualify as inherently distinctive and enjoy the broadest legal protection. "Kodak", "Pepsi", "Zomato" and "Oyo" are examples of coined names that have quickly risen to household recognition.
Coined trademark are easy to register and protect, hold strong enforceability against similar marks and build exclusive brand identity for the company. The only challenge with coined marks is marketing. Since consumers have no pre-existing association with the word, businesses must invest in creating awareness!
2.Arbitrary and Distinctive Trademarks: Familiar Words, New Contexts
Arbitrary marks use existing dictionary words, but in an unrelated context. For example, using the word "Apple" for computers (and not fruit), "Amazon" used in relation to e-commerce and "Indigo" used in the aviation industry. These marks are highly distinctive because the ordinary meaning of the word has no connection with the goods or services.
Arbitrary trademarks are easier for consumers to remember than coined marks and provide strong legal protection, almost on par with coined marks. However, if one uses an existing word too closely related to your goods, it slips into the descriptive zone. For example, naming an organic honey brand "Sweet Nectar" may face hurdles for being too descriptive of the product itself.
3.Descriptive Trademarks: Walking a Fine Line
Descriptive marks describe some quality, characteristic, or feature of the goods or services. Words like "cold," "creamy," "fresh," or "fast" fall in this category.
Under Section 9(1)(b) of the Trade Marks Act, 1999, descriptive marks are generally not registrable unless they have acquired a secondary meaning through long, exclusive use and consumer recognition.
For instance, "Fair & Lovely" trademark is descriptive of its goods, but has acquired distinctiveness through extensive use. "Burger King" may be considered partially descriptive, however it was registrable since consumers identify it with a specific source due to its longstanding use. The trademark "Sugar Free" is also descriptive of the product, yet through aggressive marketing, it became a source identifier in India and successfully attained registrations
The biggest advantage of a descriptive trademark is that it instantly communicates the product's nature to customers. However descriptive trademarks provide weak legal protection and require heavy branding investment to gain distinctiveness.
4.Laudatory Trademarks: Praise Without Substance
Laudatory marks are those that praise the goods or services without describing their actual qualities. Think of words like "Best," "Super," "Deluxe," or "Royal." Courts usually treat these as weak marks, because every trader should be free to make exaggerated claims. After all, who hasn't seen a roadside dhaba named Hotel Paradise that looks anything but paradisiacal..!
Laudatory marks may be registrable if their accompanied by other distinctive elemtns and/or have acquired distinctiveness by virtue of use. For instance, "Royal Enfield" has acquired distinctiveness, but "Royal" alone would be difficult to monopolise.
Laudatory terms may be registrable in combination with other distinctive elements, but on their own they rarely succeed. Trying to trademark "Best Pizza" is like trying to patent boiling water—it just won't fly.
5.Generic Trademarks: The Weakest Link
Generic terms refer to the common name of goods or services themselves. These can never be registered as trademarks because they are part of everyday language. Imagine trying to monopolise the word "bread" for selling bread—everyone else in the bakery business would revolt. In India, attempts to monopolise words like "Basmati" or "Ayurveda" have been met with resistance, as these are generic cultural terms.
Genericide: A Cautionary Tale – Sometimes, even strong marks can become generic if they are used as the common name for the product itself. Classic global examples include "Aspirin," "Escalator," and "Cellophane." Companies like Google and Velcro spend considerable energy reminding consumers that their marks are brands, not verbs or nouns.
Choosing a Strong Business Name: Practical Guidelines
- Aim for Distinctiveness: Pick something coined or arbitrary. "Bluvanta" for an apparel brand is better than "Comfort Wear."
- Avoid Copycatting: Even minor spelling changes (like "Ammazon" or "Nykahh") will land you in legal trouble and make you look unimaginative.
- Check for Existing Marks: Use the Indian Trade Marks Registry online search tool before falling in love with a name.
- Test Pronunciation and Recall: If customers can't say it, they won't buy it. Coined names should be short, catchy, and easy on the tongue.
Protecting a Business Name in India
Registration Process
As the first step, it is advisable to conduct a trademark search, to determine risks, if any, to the use and registration of the proposed trademark. The search is conducted in the Trademarks Registry's online database and through internet search portals, that may disclose, as much as is possible, other parties using the same or close variants of the trademark you propose to adopt.Thereafter, the trademark filing and prosecution procedure is fairly standard:
- Once the application is filed, the same is examined by the Trademarks Registry and an examination report is issued.
- If required, the Registry appoints a show cause hearing in addition to the response that is filed to the examination report.
- Once accepted, the mark is advertised for a period of four months in the Trademarks Journal, for third party opposition.
- If no oppositions are lodged, a registration certificate is issued, which is valid for and renewable after 10 years.
Benefits of registration
Once a trademark is registered under the Trade Marks Act, 1999, the proprietor acquires the exclusive right to use it for the goods or services specified. However, rights on paper mean little without effective enforcement. In practice, trademark enforcement in India involves a mix of civil, criminal, and administrative remedies, each serving a distinct role in deterring infringement and counterfeiting.
1.Civil Remedies
The most common route is filing a civil suit for infringement before a District Court or High Court with jurisdiction. Remedies include:
- Permanent/Interim Injunctions – restraining the infringer from further use.
- Damages or Account of Profits – compensating the trademark owner or disgorging the infringer's profits.
- Delivery-up/Destruction of Goods – preventing counterfeit products from re-entering the market.
Civil enforcement is strategic, as it offers strong deterrence and safeguards brand equity.
2.Criminal Remedies
The Act also criminalises counterfeiting and false application of trademarks. Police, often with court approval, can conduct raids, seize infringing goods, and prosecute offenders. Punishment may extend to imprisonment (up to three years) and fines, making criminal remedies effective against organised counterfeiting networks.
3.Border Measures
Trademark owners can record their marks with Indian Customs under the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007. This empowers Customs officials to detain infringing imports, a critical safeguard in sectors prone to piracy such as electronics, luxury goods, and pharmaceuticals.
4.Importance of Vigilance
Enforcement is not a one-time affair. Trademark owners must actively monitor the marketplace, online platforms, and the Trade Marks Journal to detect misuse. Delay or inaction may weaken a claim and embolden infringers.
In short, trademark registration is only the first step. Effective enforcement—swift, strategic, and sustained—is what truly protects a brand's identity and commercial value in India's competitive marketplace.
Conclusion
A business name is not just a creative exercise—it is a legal and strategic decision. Understanding the spectrum of trademark strength helps entrepreneurs avoid weak or unprotectable names and build brands with enduring value.
In India, where competition is fierce and consumers are spoilt for choice, a strong trademark can be the difference between becoming the next Zomato or fading into obscurity among countless "Best Food" outlets.
So, the next time you sit with your notepad brainstorming names, remember: the law rewards creativity. Whether you coin a fresh word, repurpose an existing one, or invent something that sounds quirky but memorable, make sure your business name is distinctive, registrable, and defensible.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
