Transient and Contextual Distinctiveness in the Age of Viral Branding

Introduction

The timeline of creation, distribution and consumption of a brand has profoundly evolved by digital transformation of markets. In an era of virality, consumer recognition is frequently generated through short but intense bursts of visibility, often fueled by the social media platforms, influencer marketing as well as algorithmic amplification instead of the traditional model of consistent and incremental use of a brand. Today, hashtags, keywords and other unconventional brand identifiers become widely recognized in a matter of days and serve as reliable source indicators while they are in the spotlight. However, such transient identifiers pose an unprecedented challenge to the traditional application of the Indian trademark law which still heavily relies on the longevity and continuity of use of a brand as a key indicator of distinctiveness.   

The Trade Marks Act, 1999 was enacted with the view that goodwill and reputation were acquired steadily and predictably. However, this presumption is challenged by today’s digital-first branding strategies which associate consumer recognition with particular platforms and cultural contexts within brief timelines. Owing to this, the judiciary is increasingly faced with claims pertaining to marks that are ephemeral yet commercially powerful, thereby, challenging the method of evaluation of distinctiveness in the modern marketplace.

Distinctiveness and Its Temporal Assumptions

The Indian trademark law premises distinctiveness on the notion of a mark reliably indicating source over a considerable period of time. While inherently distinctive marks are entitled to protection at the outset, descriptive marks have to acquire distinctiveness over a long period of exclusive use, supplemented by proof of sales, advertising expenses as well as consumer recognition. Thus, there is an implied durability with trust and repetition culminating into source identification.

However, this premise becomes temporal when courts examine beyond conventional marks. For instance, slogans and campaign phrases inherently perform a two-fold function i.e., communicating an ideological message as well as operating as a source indicator. This dual functionality is further intensified by viral branding through the integration of slogans in a particular cultural context i.e., widespread circulation through social media, thereby blurring the line between expressive speech and source identification and accelerating its potential to acquire trademark significance. Any trademark disputes arising in such a context makes determination of distinctiveness, ownership and enforceability somewhat complex. 

For instance, the Delhi High Court evaluated the eligibility of a slogan for trade mark protection on the basis of its extensive online advertisement in Bright Lifecare Pvt. Ltd. v. Vini Cosmetics Pvt. Ltd. (2022)^[1]. In this case, although it was accepted that a slogan is not per se outside the realm of a registrable mark, it was also held that popularity and success as an advertisement is not sufficient to prove acquired distinctiveness considering the mark had otherwise failed to attain a level that would raise it from being an advertising message to an indication of origin.

This decision highlights the judicial perception of short-term consumer recollection as a measure of recognition of the mark. Further, the decision also exemplifies an inherent tension in the doctrine: that consumer association conceptually requires an extended process and that consumer perception may be moulded through frequent exposure over short periods of time, even if such exposure does not necessarily remain for longer than an advertising campaign.

Digital-First Branding and Evolving Evidentiary Standards

Transient popularity, marketing intensity or contextual visibility is often amplified in the digital and viral branding ecosystem. However, the courts have time and again reinforced the principle that such transient virality does not by itself confer distinctiveness on a mark, unless it demonstrably functions as an exclusive indicator of source. Thus, with industries converting to a largely online presence, measures such as sales volume or advertising turnovers may not necessarily measure association. For instance, in the case of Oswaal Books & Learnings Pvt. Ltd. v. Registrar of Trade Marks (2025)^[2], the Delhi High Court stated that evidence of sales, advertising expenditure, and promotional use was insufficient to establish secondary meaning where the phrase was predominantly used alongside the well-known house mark and not independently perceived by consumers as denoting a single commercial origin.

Transience, Consumer Recognition and the Risk of Overreach

Fearing overprotection, an unwillingness to offer protection to viral marks is common and it cannot be denied that granting exclusive rights to slogans that make up common speech or ephemeral culture could potentially impact competition in a way that may limit freedom of expression in advertising, that too in highly competitive markets where advertising in cultural slang is a common phenomena.

Nonetheless, it is pertinent to note that the current pattern of transience alone being a recipe for refusal fails to take into account the commercial realities of contemporary branding. As evident throughout Bright Lifecare and Oswaal Books, courts have recognized that markets are in flux, yet appear anchored to traditional touchstones that privilege permanence over intensity of consumer association.

This approach fails to recognize that commercial value can also be created within the short life span of a viral marketing campaign. Even in circumstances when a mark has been intended to lack durability in terms of existence, any unauthorized use in the period when it enjoys peak recognition could cause harm to the reputation of any brand owner, albeit short-lived.

Conclusion

The reality of viral marketing reveals an increasing mismatch between the presumptions of Indian trademark law and the realities of online markets. Fleeting and context-dependent distinctiveness challenges the traditional assumption that consumer recognition must occur slowly and steadily in order to be worthy of protection. Although recent judicial decisions indicate an evolution, doctrinal developments continue to be risk-averse.

Through sharpened evidentiary requirements, respect for consumer perception on online platforms, and a re-evaluation of the timing of distinctiveness, contemporary brand management practice may be integrating within the provisions without compromising its core requirement of source identification. In a world where consumer engagement is getting shorter and more scalding, a re-orientation of trademark law to take account not only of duration, but functionality too, is clearly called for.

Alisha Rastogi

Senior Associate

alisha@iprattorneys.com

^[1] CS(COMM) 144/202

^[2] C.A.(COMM.IPD-TM) 19/2024