The number game – Alphanumeric and numeral trademarks

Distinctiveness of trademarks can be viewed as a spectrum, with certain types of marks ranking high (invented, coined, fanciful, etc.) and others ranking low (suggestive, descriptive, etc.). A curious category, however, is the realm of alphanumeric and numeral marks, which are contentious given the balance to be maintained between the role of a source indicator and ensuing no undue monopoly of a numeral to one person/entity. One such recent instance is the case where the well-known Indian airlines ‘IndiGo’ instituted a trademark infringement suit against the reputed Indian car manufacturer ‘Mahindra’, over the use of its alphanumeric mark ‘6E’. Mahindra recently launched its electric SUV car named ‘BE 6E’, against which IndiGo initiated the commercial suit before the Delhi High Court, asserting its statutory and common law rights in their mark ‘6E’. While the suit is pending adjudication, numerals-based trademarks and their registrability have been the subject matter of judicial precedents in India.

Alphanumeric and numeral marks: What are they?

Numeral marks are signs that are solely made up of numbers, for e.g. the famous number ‘007’ that is associated with the James Bond franchise, ‘93.5’ associated with the radio channel RED FM. Alphanumeric marks, on the other hand, includes both letters (alphabetic characters) and numbers. Some examples would be a popular soft drink ‘7UP’, Chanel’s famous perfume ‘N°5’.

Registrability: What does the law say?

As per Section 2(1)(m) of the Trade Marks Act, 1999 (‘Act’), a mark includes a ‘device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colors or any combination thereof’. Thus, as per the statutory definition, a trademark can be made up of a letter (e.g. Q), a numeral (e.g. 7), or a combination thereof (e.g. Q7).

However, in the journey to registration, it is not enough that a mark merely falls within the above definition. An important threshold to meet is distinctiveness i.e., the mark must be capable of distinguishing the goods/services of one entity from those of another under Section 9 of the Act. It is not surprising that numeral and alphanumeric marks are generally considered to be lower on the distinctiveness spectrum, owing to the lack of any unique or fanciful elements in them.

Trade Mark Registry’s approach to distinctiveness in alphanumeric and numeral marks

While prosecuting trademark applications for alphanumeric and numeral marks, the Indian Trade Mark Registry does not seem to adopt a straitjacket approach. A few such applications, and the Registry’s prosecution thereof are discussed below:

Based on the above, it appears that there is no ‘one-size-fits-all’ approach being taken by the Registry for alphanumeric and numeral marks. Some marks have met with objections/ refusals basis non-distinctiveness, while others have been directly accepted without any objections to their distinctiveness. The prosecution history of such marks demonstrates that registration can be successfully achieved, should the proprietor be able to demonstrate that their alphanumeric/ numeral mark is arbitrary i.e. has no meaning with respect to the applied goods/services, or does not conflict with an earlier trademark, or has preferably also acquired distinctiveness through the course of its usage. 

IndiGo too, like some of the above-stated proprietors, is the owner of many alphanumeric registrations, such as ‘6E’, ‘6E Link’, ‘6E Plus’, and ‘6E Pass’. It is noteworthy that their mark ‘6E’ under Reg. No. 1878015 also met with an objection of non-distinctiveness from the Registry, however IndiGo was able to achieve successful registration over the same, thus demonstrating the validity of their rights over their alphanumeric brand name.

Enforcement: Jurisprudence on conflicts over alphanumeric/ numeral marks

In addition to registrability of the subject marks, another consideration attached with such marks is the conflict between two identical/ similar alphanumeric or numeral marks. Though jurisprudence on the topic is limited, Courts in India have made numerous observations as to the enforcement and protection of such marks. A discussion on a few cases is provided below:

• In Jagan Nath Prem Nath Bhartiya Dhoop Karyalaya, 1975 SCC OnLine Del 79, the conflict arose with respect to the numeral ‘555’ for agarbattis, such that the concerned parties were using the marks ‘Kasturi Agarbati 555’ and ‘Anand Darbar Batti 555’. Even though the numeral formed only part of the marks, the High Court of Delhi adopted a broader approach and granted interim injunction to the Plaintiff, recognizing that the evidence presented demonstrated that ‘555’ has acquired a distinctive meaning in the trade.
• In matters determining the likelihood of confusion owing to the use of deceptively similar/ identical marks, the target consumers/market of the products shall also play a vital role, as was held in the case of Vrajlal Manilal & Co. Adarsh Bidi Co., 1995 SCC OnLine Del 73. Here, the Plaintiff filed a suit for infringement and passing off of their trademark ‘22’ (for bidis) by the Defendant, who were selling bidis under the trademark ‘122’. The High Court of Delhi in this case granted protection to the Plaintiff’s mark by restraining the Defendants from using the trademark ‘122’, while also taking into consideration the fact that unwary consumers of bidis who are illiterates or semi-literates, could easily be led into purchasing Defendants’ bidis as that of the Plaintiffs’.
• The High Court of Delhi in Carlsberg India Pvt. Ltd. v. Radico Khaitan Ltd., 2011 SCC OnLine Del 5756, dealt with an issue between Radico, who manufacture alcoholic beverages under the mark ‘8PM’ and Carlsberg, for were using ‘PALONE 8’ for beer. The Court held that Radico’s registration over the composite alphanumeric mark ‘8PM’ does not entitle it to claim exclusivity over the single numeral ‘8’. This strict reasoning asserts that rights in alphanumeric marks, though registrable, are limited to the combination of the numeral and letter as a whole.
• In the case of Mona Aggarwal & Anr. Glossy Colour & Paints Pvt. Ltd. & Anr., 2016 SCC OnLine Del 635, Glossy Colour filed a suit for infringement basis their mark ‘1001’, against Mona Aggarwal’s use of the mark ‘6004’, both of which were being used for paint, varnish, etc. Notably, the High Court of Delhi held that ‘though there is no quarrel with the proposition that a trademark can be represented merely by a numeral, however, simply because one party had adopted a numeral as a trademark for its products, it cannot be said that no other party can adopt different numerals as part of a trademark for their similar goods. In such a situation what has to be seen, is whether the mark taken as a whole i.e. combination of numeral, colour scheme, get-up, layout are deceptively similar’.
• An alphanumeric mark of descriptive nature, in the absence of evidence substantiating that the same has acquired distinctiveness or secondary meaning, shall not be entitled to registration, as was held in the case of Shine Chem Laboratories Standard Reagents Private Limited, 2016 SCC OnLine Hyd 198. Here, the Court held that the Plaintiff’s alphanumeric mark ‘Stable 2Y++ Single Solution’ does not have any distinctiveness (as the terms ‘Stable 2Y++’ admittedly describes the stability of the produce in the packed bottle for a minimum period of 2 years), especially given that there has been no substantial evidence showcasing that the words Stable 2Y++ has attained secondary meaning vis-à-vis the products of the Plaintiff.
• Numeral trademarks may be arbitrary in nature and will therefore be entitled to protection when used individually, as part of alphanumeric combinations, or spelled out in letters. In Alphavector India Pvt. Ltd. Sach Industries & Ors., 2023 SCC OnLine Del 615, the Plaintiff (Alphavector India) being the registered proprietor of several marks featuring the number ‘91’ in conjunction with words such as ‘outdoors’, ‘cares’, ‘vector’ and a ‘V’ logo, filed a suit against the Defendant (Sach Industries) who was using the marks NINETY-NINE and 99. The High Court of Delhi opined that the numeral marks 99 and 91 were deceptively similar to one another in respect of bicycles. The Court further held that numeral trademarks are arbitrary in nature and are entitled to protection.
• An alphanumeric mark that has gained secondary meaning shall be entitled to protection, even without separate registration for the alphanumeric character per se, as was held in the case of GTZ India Pvt. Ltd. Artek Surfins Chemicals Ltd. & Anr., 2024 SCC OnLine Del 4211. The High Court of Delhi upheld the injunction order prohibiting Gtz India from using the unique combination of a particular numeral along with particular alphabet being ‘786’, ‘2048M’, ‘2048R’, ‘1085M’ etc., on account of the same being identifiers of the Respondent’s (Artek Surfins Chemicals Ltd) products amongst the relevant consumer base. The Court further determined that the Respondent’s alphanumeric characters (such as 786, 511, etc.) have acquired a secondary meaning through exclusive use in relation to their products and are therefore entitled to protection, even though they are not registered as a separate trademark.

Conclusion

From the above discussion, it is evident that multiple factors are to be considered when adjudicating issues pertaining to alphanumeric or numeral marks. Where they are used in a descriptive sense (as was the case with 2Y++), proprietors are disallowed from asserting rights over the same. On the other hand, if the alphanumeric/ numeral are arbitrary in nature in comparison to the goods/services concerned (e.g. 99 for bicycles), it is considered capable of both protection and enforcement against third parties. An especially relevant consideration is the attainment of secondary meaning in an alphanumeric/ numeral mark, in relation to the target consumers. Precedents show that when a proprietor can demonstrate that the relevant public has come to attach a secondary meaning to the alphanumeric or numeral mark, then the Courts are more amenable to grant monopoly rights over them. However, to prevent unfair practices resulting from enforcement of alphanumeric/ numeral marks, principles such as the Rule of Anti-Dissection are relied upon (‘8PM’ does not give right to prevent others from using ‘8’).

[The first two authors are Associates while the third author is a Partner in IPR practice at Lakshmikumaran & Sridharan Attorneys]