Marico Ltd. v. Agro Tech Foods — "Losorb" Trademark Case

Citation & Court

Marico Limited v. Agro Tech Foods Limited, CS(OS) No. 1590/2009, Delhi High Court, 2010 (44) PTC 736 (Del), decided 1 November 2010.

The Dispute

Marico held registrations for "LOSORB" and "LO-SORB" — minor spelling variants of the descriptive phrase "low absorb" — for cooking oil marketed as absorbing less oil during frying. Agro Tech Foods challenged the validity of these registrations, pointing out they had been granted on a "proposed to be used" basis without any evidence of distinctiveness before the Registrar.

What the Court Held

The Delhi High Court held the registrations prima facie invalid. "LOSORB"/"LO-SORB" were minor variations of a phrase that directly describes the designation, quality, and intended characteristic of the goods — squarely within the absolute grounds for refusal under Section 9(1)(b) of the Trade Marks Act. On the acquired-distinctiveness question, the Court went further and held that it could not be said the mark had acquired secondary meaning merely by a few years of use — acquired distinctiveness under Section 9 was treated as close to the "well-known mark" standard, not a low bar.

How to Use This in Your Reply

This is the key cautionary citation whenever a client wants to rely on "we've used it for a few years" as their entire acquired-distinctiveness argument in an objection reply. Use it to set realistic expectations on the volume and quality of evidence actually required — sales figures, advertising spend, market share, consumer recognition surveys, and length of exclusive use — before an examiner or court will treat a descriptive mark as distinctive.

Key takeaway: Descriptive marks face a high evidentiary bar for acquired distinctiveness; a short period of use, without more, will not clear it.