Delving into the Legal Landscape of Trademark Genericide: A Critical Perspective on Indian Law

Abstract

Companies invest heavily in publicising their brands, as trademarks have a commercial value in the market. With this brand-building process, there are times when trademarks lose their exclusive right as source indicators through a process known as genericide. Genericide is a devil that takes away the identity and dominant character of the trademark and makes it a common descriptive word used by consumers for Sui Generic goods and services. Ironically, the popular brands with the lion's market share are more prone to genericide. Under the Trademark Act of 1999, such a registered trademark can be cancelled, extinguishing the trademark holder's rights forever. The author of the present paper argues that genericide is a concept that penalises a successful proprietor rather than protecting the interests of rivals or consumers. To examine the said argument, the author has taken a doctrinal approach by providing an in-depth analysis of the process of trademark acquisition, the phenomenon of genericide, and the measures that can be taken to prevent the genericisation of a trademark, with illustrative examples from Indian Trademark jurisprudence. Fortunately, there are various means to combat the devil of genericide; in the final remarks, the author will summarise the measures that trademark holders must take to preserve the ‘Distinctiveness’ of the trademark.