Introduction
Can a corporation claim exclusive ownership over a word associated with a remote tribe or a specific geographic region, or do such terms belong eternally to the public domain? The answer lies in the “arbitrary” nature of a mark: if a term is used in a way that does not describe the product’s quality or nature much like using a tribal name for a modern spirit it can indeed achieve the status of a protected brand, provided the Registry plays by the rules of natural justice. As seen in the recent Delhi High Court judgement of M/S. Ads Agro Industries Pvt. Ltd vs. The Registrar Of Trade Marks1 the path to private registration must be paved with procedural certainty and fairness to ensure that “distinctiveness” is not undermined by administrative inconsistency.
The factual matrix of this landmark 2026 decision centers on the Appellant’s attempt to register the mark ‘TAJPURIYA’ for alcoholic beverages under Class 33. While the Appellant asserted the mark was an arbitrary and inherently distinctive choice, the Registrar initially deferred the application via an Examination Report citing Section 9(1)(a) of the 1999 Trademark Act, arguing the name was geographical. However, in a procedural shift during the final refusal, the Registry “shifted the goalposts” by introducing a new justification: that ‘Tajpuriya’ is the name of an indigenous tribe in Nepal and India where alcohol is central to religious rituals. The High Court ultimately set aside this order, ruling that refusing a mark based on grounds never disclosed in the initial report violates the principles of natural justice and deprives the applicant of a fair opportunity to respond.
This shift in the IP landscape is further defined by the success of sensory marks, such as United Breweries Limited’s registration of the iconic “Oo La La La La Le O” sound mark. To move from a catchy tune to a registered asset, a mark must survive a rigorous set of legal evaluations. First, it must pass the Test of Factual Distinctiveness, which requires the sound to serve as a “source identifier” rather than a mere “functional” byproduct; for instance, the sound of a soda can opening is functional and non-registrable, whereas a unique musical jingle identifies a specific brand. Second, the Graphical Representation Test mandates that the sound be converted into a visual format typically through musical notations showing pitch, progression, and duration to ensure it can be searched and compared within the Registry’s database. Finally, as demonstrated in the Ads Agro case, even terms with cultural roots must pass the Arbitrary Usage Test, which evaluates whether the mark has any descriptive connection to the goods. If ‘Tajpuriya’ does not describe the taste, origin, or quality of the liquor, it is legally “arbitrary” and thus highly protectable.
The judiciary has long relied on “North Star” precedents to navigate these complex waters. Most notably, the Court in Ads Agro relied on Sahkar Seeds Corporation v. Dharti Seeds (2017)2, which established that even where a mark is one of geographical origin, it can be registered if it is used in an arbitrary manner. This builds upon the foundational logic of the Geographical Indications vs. Trademarks debate seen in cases like Imperial Tobacco Co. of India Ltd. v. Registrar of Trade Marks3, where the court examined whether a word like “Simla” could be monopolized. Furthermore, the principle of procedural fairness mirrors the ruling in Manohar v. State of Maharashtra4, emphasizing that no person should be condemned unheard or surprised by new adverse evidence at the final hour. Additionally, in Nandhini Deluxe v. Karnataka Co-operative Milk Producers Federation Ltd.5, the Supreme Court clarified that even similar marks can coexist if they are used for distinct goods, reinforcing the idea that the context of “use” is paramount. By remanding the Ads Agro matter, the Court reaffirmed that while the Indian market is maturing to embrace modern branding, the bedrock of the law remains procedural clarity and the protection of arbitrary innovation against inconsistent administrative discretion.
Conclusion
The intersection of the Kingfisher sound mark and the Ads Agro judgment signals a pivotal era for Indian intellectual property where sensory innovation meets procedural accountability. These developments prove that “distinctiveness” is a flexible, dynamic concept capable of protecting diverse assets from melodies to arbitrary cultural terms so long as the Registry adheres to the rule of law and avoids the “shifting goalposts” of administrative discretion.
Citations
Expositor(s): Adv. Archana Shukla
