In my previous post I discussed three major reasons as to why descriptive words are bad trademarks. They generally will be objected to by the Registry, or they may be allowed with disclaimers and even if they are registered, they may not let you stop someone else from using a similar mark. A common way brand owners try and overcome this is by misspelling DISKRIPTIVE words to try and get them registered as trademarks.
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So when you see AER for air fresheners and SNAX for snacks they are very descriptive and HARE DRESSERS would probably be descriptive for a saloon and people who have taken it upon themselves to dress rabbits. Either way, the Registry and Court’s aren’t particularly fooled by this ploy.
The Trademark Manual issued by the Indian Trademark Office clearly states that common misspelt words will be treated as descriptive and not allowed to be registered. They’ve even gone to the extent of stating that words which have an American and British spelling like color/colour would be descriptive in both variations.
The reasoning behind this is quite straightforward – even if descriptive words are misspelt, the general idea would be to have them phonetically the same so that the customer identifies the purpose of the mark. We’ve also all probably come across that email forward with the information about the Cambridge research scholar who theorized that it didn’t particularly matter if the letters in a word were scrambled provided the first and last word were in the correct position since the brain puts it all together.
However the Manual does go on to state that if you are very clever with the mis-spelling it may be to the extent that it forms a new word entirely, in which case the trademark becomes a coined word and can be registered. The example cited is NOVAX, which is a combination of NO and WAX for ear drops. SERIAL for breakfast cereals. In such cases the trademark can be registered and enforced.
Another exception to the rule would be misspelt descriptive words in a foreign language. BON APETY or ASTA LAVISTA would probably be allowed to be registered as they are not descriptive in English, Hindi or any of the regional languages.
The final exception, which applies to descriptive marks in general, is that if the trademark acquires distinctiveness because of its extensive usage it will be registered and can be enforced. This basically means that if a mark, even if it is descriptive becomes associated only with the owner then it is a good trademark. This comes back to the basic purpose of trademark law which is to identify a given mark with the business owner.
So the next time, you come across a café called KOOL CAFEY or shop called BY EVRYTHING HEAR, the owners may not need to hire a better proof reader… they may have intentionally done it to try and make a descriptive word a trademark!