Trademarks are the bedrock of brand identity, offering a means for companies to distinguish their products or services from competitors. While the registration of a trademark is typically associated with names, logos, and slogans, there exists a crucial concept within trademark law known as “secondary meaning.” This legal principle is fundamental in understanding the complexities of trademark protection, especially when it comes to marks that may not be inherently distinctive but have acquired distinctiveness over time. In this article, we will delve into the concept of secondary meaning, explore its significance in trademark law, and illustrate its application through real case studies.

Understanding the Concept

In Indian trademark law, similar to global principles, marks that are inherently distinctive or have acquired distinctiveness through use are eligible for protection. Section 2(zb) of the Trademarks Act, 1999, defines a “trademark” as a mark capable of distinguishing the goods or services of one person from those of others. This Act acknowledges that distinctiveness can be inherent or acquired.

Secondary meaning, as understood in Indian jurisprudence, pertains to marks that, while non-distinctive on their face, have gained recognition among consumers through continued and exclusive use. Over time, consumers associate these marks with a particular source or origin, thereby acquiring distinctiveness.

Requirements to Establish Secondary Meaning

In the context of Indian trademark law, establishing secondary meaning requires specific considerations and evidence to prove that a mark has acquired distinctiveness over time. The process involves fulfilling certain requirements to demonstrate that the mark, initially lacking inherent distinctiveness, has garnered recognition among consumers.

Continuous and Exclusive Use:

Extensive Usage: The mark must have been consistently and extensively used in connection with the goods or services. Continuous use over a significant period is essential to demonstrate the mark’s exposure to the public.

Exclusive Use: The mark should have been exclusively associated with a particular source. Any evidence showcasing the mark’s unique association with a specific brand or origin is crucial.

Consumer Perception:

Consumer Surveys: Surveys and market research studies can provide empirical evidence of consumer perception. These surveys should demonstrate that the mark is associated by consumers with a specific source or brand.

Advertising and Promotional Efforts: Records of significant advertising campaigns, promotional activities, and marketing strategies directly linked to the mark can help establish its connection with the brand in the eyes of consumers.

Duration and Evidence:

Longevity: The longer the duration of usage, the stronger the case for acquired distinctiveness. Marks that have been used for an extended period are more likely to have acquired secondary meaning.

Substantial Evidence: Documentary evidence, such as sales figures, advertising expenditures, market studies, and any other materials indicating consumer perception and market penetration, are essential to support the claim of acquired distinctiveness.

Consumer Testimony:

Affidavits and Testimonials: Sworn statements or testimonials from consumers or industry experts affirming the mark’s association with a particular brand can be persuasive evidence of secondary meaning.

Trade Recognition:

Evidence of industry recognition or awards that link the mark to a specific source can further bolster the claim of acquired distinctiveness.

Legal Provisions 

Section 9(1) – Absolute Grounds for Refusal of Registration: This section stipulates the absolute grounds for refusing registration of a trademark. Marks devoid of distinctiveness or those that describe the intended purpose, quality, or characteristics of the goods or services are generally not eligible for trademark protection. However, Section 9(1) provides an exception where a mark can be registered if it has acquired distinctiveness through its use.

Section 9(3) – Exception to Lack of Distinctiveness: Section 9(3) of the Act provides an exception to the absolute grounds mentioned in Section 9(1). It states that a mark lacking inherent distinctiveness may be registered if it has acquired a distinctive character as a result of its use. This section recognizes the importance of acquired distinctiveness and secondary meaning in trademarks.

Ching’s Schezwan Chutney CaseCapital Food Private Limited vs. Radiant Indus Chem Pvt. Ltd

In the case between Capital Food Pvt. Ltd. and Radiant Indus Chem Pvt. Ltd., a dispute arose over the use of the mark “SCHEZWAN CHUTNEY.” Capital Food Pvt. Ltd., known for creating and independently using the trademark, claimed infringement when Radiant Indus Chem Pvt. Ltd. introduced “MRS. FOODRITE SCHEZWAN CHUTNEY.” Capital Food argued that the defendant imitated their mark, packaging, and promotional materials.

However, the court ruled that “SCHEZWAN CHUTNEY” was a descriptive term indicating a chutney with a “Schezwan” flavor, available to competitors in the market. The court found that the plaintiff, Capital Food Pvt. Ltd., primarily used the term to describe the product, while their identifiable trademark was “Ching’s Secret,” suggesting that “SCHEZWAN CHUTNEY” wasn’t exclusively associated with their brand.

The court further stated that if protection were granted to “SCHEZWAN CHUTNEY,” it could set a precedent for similar descriptive terms like “Tamarind Chutney” or “Tomato Chutney.” Consequently, the request for an injunction against the defendant’s use of the term was denied. The court held that the term lacked distinctiveness and was descriptive of the product, failing to acquire a secondary meaning exclusively associated with the plaintiff’s brand.

Significance of Acquiring Secondary Meaning

The acquisition of secondary meaning holds significant importance in trademark law, especially for businesses seeking to protect their marks. When a mark gains secondary meaning, it goes beyond its literal or generic interpretation, becoming strongly associated with a particular source or brand in the eyes of consumers. This provides exclusivity and protection, as the mark becomes uniquely linked to a specific company, setting it apart from competitors. Secondary meaning can enhance the market position, value, and recognition of a brand, fostering customer loyalty and trust.


In summary, the concept of secondary meaning in trademarks, particularly in the realm of Indian law, serves as a vital pathway for brands to attain exclusive rights and legal protection. It allows seemingly non-distinctive marks to gain unique significance through sustained use and consumer recognition.

Indian trademark law, in harmony with global standards, acknowledges the importance of acquired distinctiveness, offering safeguarding to marks that have developed secondary meanings. Notable cases like Capital Food Pvt. Ltd. versus Radiant Indus Chem Pvt. Ltd. emphasize the necessity of proving a mark’s exclusive secondary meaning, highlighting the challenges, especially when dealing with descriptive or commonly used terms.

Establishing secondary meaning requires a strategic approach backed by evidence of consumer perception, extensive use, and marketing efforts. Despite its challenges, the rewards are substantial, granting a brand a unique identity, legal protection, and a competitive edge in the market.

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