The case[1] wherein the plaintiff claims that it had introduced a dip and spread-based product, coined under the trade mark “SCHEZWAN CHUTNEY”. The plaintiff further explains how he coined the mark “SCHEZWAN CHUTNEY”. SCHEZWAN is a province of “SZECHUAN” in China known for its, strong flavours, the pungency and the spiciness brought on by the usage of garlic and chilli peppers. Indian-style “CHUTNEY” is a hot condiment made from fruits or vegetables, vinegar, spices, and sugar. Accordingly, “SCHEZWAN CHUTNEY” is a created and invented trade mark that is inherently distinctive of the plaintiff due to the random and unique combination of “SCHEZWAN” and “CHUTNEY.” Thus, the Plaintiff is the first and original adopter and user of the trade mark SCHEZWAN CHUTNEY. The petitioner claims that the trademark “SCHEZWAN CHUTNEY” has acquired a secondary meaning.
The Hon’ble High Court of Delhi has referred to the judgement of the Bombay High Court in case of People Interactive (India) Private limited v. Vivek Pahwa., 2016 SCC OnLine Bom 7351, wherein the High Court of Bombay has explained what we mean when we say an expression “has acquired a secondary meaning”. The term “has acquired a secondary meaning” must necessarily mean that the primary meaning of the expression, the one with which it began, has been lost. It is left behind. The expression no longer means what it once did. It has assumed a new avatar. It has transcended its original connotation and now references exclusively in the public mind the claimant’s products, goods or services, i.e., that there is an identification of the mark with the claimant rather than with the goods or services in and of themselves. The claim of a secondary meaning posits a priori that the expression once had a more commonplace, ordinary meaning, this is the meaning that is now lost.
In continuation to aforesaid the court stated that mere use and statements of sales and expenses do not, of their own, establish the acquisition of a secondary meaning. That proof must be directed to establishing that the merely descriptive expression in question is now firmly established in the public imagination with the claimant and its goods and services. The Court further observed that use itself does not establish distinctiveness. The extent to which a mark has lost its primary meaning and the extent to which it has acquired a secondary one are conclusions to be drawn from evidence. That evidence, showing the displacement of the primary meaning by the secondary meaning, must be of the members of the public as well, not merely those specially placed to attest to its uniqueness.
Conclusion:
Most owners of the trademark claim that their mark has acquired a secondary meaning. However proving the same is an arduous task. This case highlights the properties which gives secondary meaning to a mark. In simple words when a mark loses the meaning assigned to it, initially and acquires a new meaning.
[1] Capital Food Private Limited v. Radiant Indus Chem Private Limited, CS(COMM) 379/2020.
DUCTUS EDGE 