Devoid of Distinctive Character: Why Simple or Laudatory Marks Fail Section 7(1)(b)

Not every trade mark that fails registration is necessarily “descriptive.” Some marks are refused because they are simply too thin, too common, or too generic in character to function as a badge of origin. This is the domain of Section 7(1)(b) of the Singapore Trade Marks Act, which bars registration for signs that are “devoid of any distinctive character.” Understanding this ground — and how it differs from descriptiveness under Section 7(1)(c) — is essential for building a registrable brand.

The Legal Standard: Section 7(1)(b)

Section 7(1)(b) provides that a trade mark shall not be registered if it is devoid of any distinctive character. Distinctiveness, in trade mark law, refers to the capacity of a sign to serve as a badge of origin — to tell the consumer that the goods or services come from a particular undertaking and no other.

A mark that is devoid of distinctive character is one that the average consumer would not perceive as indicating trade origin. Instead, the consumer would see it as a decorative element, a common phrase, a functional feature, or simply unremarkable.

How Section 7(1)(b) Differs from Section 7(1)(c)

Section 7(1)(c) targets marks that are descriptive of the goods or services. Section 7(1)(b) is broader. It catches marks that may not directly describe the product but still lack the inherent ability to distinguish one trader’s goods from another’s.

For example, the word “FRESH” for food products is descriptive under Section 7(1)(c). But a simple geometric shape — such as a plain circle or square — applied to clothing may not describe the goods at all, yet it lacks distinctive character under Section 7(1)(b) because consumers would not perceive it as a brand identifier.

Categories of Marks That Typically Fail

Simple Geometric Shapes

Basic shapes such as circles, triangles, and rectangles are generally considered too commonplace to function as trade marks. Consumers are accustomed to seeing these shapes as decorative or functional elements, not as indicators of origin. The shape must represent a significant departure from the norms of the relevant industry to be registrable.

Common Surnames

Very common surnames may be refused if the relevant public would perceive them as merely a personal name rather than a brand. The more common the name, the harder it is to establish that consumers would treat it as identifying a specific commercial source.

Laudatory and Promotional Phrases

Phrases that are purely promotional or laudatory — such as “The Best Choice,” “Premium Quality,” or “Number One” — are typically refused. These are expressions that any trader might wish to use to promote their goods, and the average consumer would perceive them as advertising puffery rather than a brand name.

Single Letters and Numbers

A single letter or number, presented without stylisation or additional distinctive elements, may lack the character necessary to function as a trade mark. However, this is assessed on a case-by-case basis, and stylised presentations may be accepted.

The “Badge of Origin” Test

The fundamental question under Section 7(1)(b) is whether the average consumer would perceive the sign as identifying the goods or services as originating from a particular undertaking, and thereby distinguishing them from those of other undertakings.

As the Court of Appeal noted in Staywell, distinctiveness can be inherent or acquired. While the components of a mark may individually lack distinctiveness, the sum of the parts may have sufficient technical distinctiveness when assessed as a whole. The mark must be considered in its entirety, not decomposed into isolated elements.

The Spectrum of Distinctiveness

Trade marks exist on a spectrum. At one end are fanciful or invented words (such as “Kodak” or “Xerox”) — these are inherently distinctive and face no objection. At the other end are generic or descriptive terms that cannot function as trade marks at all.

Section 7(1)(b) operates in the zone between these extremes, catching marks that are not descriptive but are nonetheless too “thin” — too common, too simple, or too promotional — to register without further evidence.

The Escape Route: Acquired Distinctiveness

As with descriptive marks, Section 7(2) provides that a mark devoid of distinctive character may still be registered if it has acquired distinctiveness through use before the filing date. The applicant must demonstrate that through extensive use in Singapore, the relevant public has come to recognise the sign as a trade mark.

This is a high bar. IPOS does not specify a minimum recognition threshold but has indicated that even 70% recognition in a consumer survey may not suffice for a highly descriptive mark, while less than 50% might suffice for a mark with a less serious objection.

Strategic Implications

• Avoid purely laudatory marks: Phrases that praise the product (“Best Ever,” “Top Quality”) will almost certainly face a Section 7(1)(b) objection.
• Invest in distinctiveness: If using a simple word or shape, add distinctive elements — an unusual font, a unique colour combination, or a creative layout — that help the mark function as an identifier of origin.
• Consider the consumer’s perception: Ask whether the average consumer seeing the mark on the goods would think “this is a brand” or “this is a decoration / slogan / description.”

Common Mistakes

• Assuming any word can be a trade mark: Not every word or phrase functions as a brand identifier, even if the applicant intends it as one.
• Confusing marketing appeal with legal distinctiveness: A catchy slogan may be excellent marketing but too laudatory or generic to register as a trade mark.
• Filing without stylisation: A plain word mark that is laudatory or common will face a Section 7(1)(b) objection that might have been avoided with a distinctive visual presentation.
• Overlooking the “whole mark” assessment: Individual elements may be weak, but the combination may be distinctive. Conversely, combining two weak elements does not automatically create a strong mark.

Key Takeaway

Section 7(1)(b) acts as a gatekeeper ensuring that only signs capable of functioning as badges of origin enter the trade marks register. Marks that are too simple, too common, or too promotional will be refused — not because they describe the goods, but because they lack the inherent capacity to tell consumers “this comes from a specific source.” The strongest filing strategy is to invest in marks that are inherently distinctive from the outset.