Distinguishability is the defining trait of a Trademark. A proper mark could give a brand its unique identity that makes it stand out in the market place so that it could attract consumers, which in turn could build a loyal customer base. Distinguishability is also an essential in Trademark Law, as you obviously cannot register a mark that is identical to an already registered mark. As regulated in Article 20 of the Trademark Law which stipulates that a mark cannot be registered if it does not have distinctiveness.
This begs the question, what would qualify as “unique” in terms of trademarks? How do you determine distinguishability in this context?
Geoffrey Hobbs QC classifies the concept of distinction into two categories, namely natural (nature) and use (nurture). He based this on the term “devoid of any distinctive character” as stipulated in Article 3 paragraph (1) letter (b) of the Trade Marks Act 1994 of United Kingdom. Read more