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Peps Industries Pvt. Ltd. versus Kurlon Limited

On the issue of enforceability of descriptive words, the Court reaffirmed that descriptive words are not registrable, except when they have acquired distinctiveness. The Court held that for a mark to ‘acquire distinctiveness’, the mark should have attained a certain amount of reputation, through its long and continuous use, so much so that use of the said mark immediately directs the public to co-relate the said mark with the source/ manufacturer, even though the word may be descriptive in nature.

The Court further referred to an earlier decision of the Court in Marico Limited Vs. Agro Tech Foods Limited, in which it was held that proof of ‘distinctiveness’ of a descriptive mark can be submitted either on- (a) the date of application; (b) or post application but prior to the actual date of registration; or (c) post registration, when the trademark validity has been challenged.

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