Our learned friends from legal fraternity must be regularly pleading at different forums that an order has been passed in an arbitrary manner.
But, on the contrary one tries hard to justify that an applied trademark is an “Arbitrary Mark” when it comes to Intellectual Property Rights (“IPR”). Is it a doglapan? ( as justified by a recent hot selling book)…
1. An Arbitrary mark is a word that has an ordinary dictionary meaning, but has no special meaning in relation to the goods or services to which it is applied, other than its source-identifying function.
2. That the Delhi High Court had granted relief in recent past on Arbitrary Mark.
TWO SUCH DECISIONS BY THE HIGH COURT
1. In the case of Ahmed Oomerbhoy and Ors. v. Gautam Tank and Ors. [CS(OS) No. 806/2005], the Delhi High Court held that ‘Postman’ is an arbitrary mark for edible oil and as such an invented word for the edible oil.
Therefore, will entail highest degree of protection whereas the defendants has countered it by alleging that ‘Postman’ is an ordinary English word in use since centuries and in case of plaintiff since there is nonuser, nature of mark is irrelevant.
This cannot be disputed that the trademarks can be categorized in different categories as generic, descriptive, suggestive and arbitrary or fanciful.
There may be over-lapping in the categories on account of various factors. In accordance with the usage through times and as meaning of user may differ from group to group, the category of trademark may change its group. For example ‘postman’ may be generic if used by a courier agency but it will be arbitrary, if applied to edible oils.
2. In the case of Evergreen Sweet House v. Ever Green and Ors. [CS(OS)1154/2005], it was held that “Marks are often classified in categories of generally increasing distinctiveness; they may be (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful. The last three categories are entitled to trademark protection because they are inherently distinctive and can serve to identify a particular source of a product.”
Hope this is not doglapan i.e contradictory but it is justifiable to argue that it is an Arbitrary Mark.
– Team AMLEGALS
For any queries or feedback, please feel free to get in touch with rohit.lalwani@amlegals.com or info@amlegals.com.
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