Case Law

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

Ahmedabad, Gujarat

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.

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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.

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FAQ

Frequently asked questions

In Marico Limited v. Agro Tech Foods Limited, decided by a Division Bench on 1 November 2010, the Delhi High Court refused Marico an interim injunction and treated its LOSORB and LO-SORB registrations as prima facie invalid. They were minor variants of "low absorb", describing a characteristic of cooking oil, within Section 9(1)(b) of the Trade Marks Act, 1999. A few years of use did not prove acquired distinctiveness.

Years of use alone are not enough. A descriptive mark needs strong proof that the public sees it as identifying one source, such as sales figures, advertising spend, market share, consumer recognition surveys and the length of exclusive use. Under the proviso to Section 9(1) of the Trade Marks Act, 1999, that distinctiveness must exist before the application date, which is difficult for marks filed as proposed to be used.

No. The ruling was a prima facie view, and it concerned spellings that remained obvious variants of a phrase describing the goods. It also noted that Agro Tech used "low absorb" descriptively alongside its prominent SUNDROP brand. A misspelling that creates a genuinely new word, or a descriptive mark backed by strong evidence of secondary meaning, can still be protected, as in Info Edge v. Shailesh Gupta.

Last Note

If your brand could only get one thing right, make it the trademark.

That is what we help you decide. Then we search it, file it, defend it, and keep it renewed for the next ten years — from Ahmedabad, for all of Gujarat.

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