Section 7(1)(d): The Final Bar for Generic and Industry-Standard Terms

At the furthest end of the distinctiveness spectrum sit generic terms — words that the public uses as the common name for a product or service rather than as an identifier of a particular brand. Under Section 7(1)(d) of the Singapore Trade Marks Act, signs that consist exclusively of terms which have become customary in the current language or in the bona fide and established practices of the trade cannot be registered. Unlike descriptive marks, generic terms face an even more difficult path to registration.

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

Section 7(1)(d) prohibits the registration of trade marks that consist exclusively of signs or indications which have become customary in the current language or in the established practices of the trade. These are terms that traders in the relevant industry routinely use to refer to a category of goods or services, and which consumers understand as generic labels rather than brand names.

The provision protects the common vocabulary of commerce, ensuring that no single trader can monopolise terms that everyone in the industry needs to use.

What Makes a Term “Generic”?

A term is generic when it is used by the relevant public — consumers and traders alike — as the common name for the goods or services themselves, rather than as an indicator of a particular commercial source. The test focuses on how the term is actually perceived and used in the marketplace.

Classic examples include “Smartphone” for mobile phones, “Escalator” for moving stairways (which was once a trade mark that became generic), and “Aspirin” in jurisdictions where it has lost trade mark significance. In the Singapore context, any term that has become the standard industry designation for a product category falls within this prohibition.

Genericism vs. Descriptiveness

While both Section 7(1)(c) (descriptiveness) and Section 7(1)(d) (genericism) prevent the monopolisation of common language, they operate differently:

• Descriptive marks under Section 7(1)(c) describe a characteristic of the goods — such as their quality, purpose, or ingredients. Example: “Fast Charge” for electronic chargers.
• Generic marks under Section 7(1)(d) are the common name for the goods or services themselves. Example: “Charger” for electronic chargers.

The distinction matters because descriptive marks can more readily be saved through acquired distinctiveness, while generic terms face a significantly higher — often insurmountable — barrier.

The Difficulty of Saving a Generic Term

In theory, Section 7(2) allows marks refused under Section 7(1)(d) to overcome the objection through evidence of acquired distinctiveness. In practice, this is extremely difficult for generic terms.

If a term is the accepted common name for a product, educating the public to perceive it as a brand rather than a product category requires overwhelming evidence. Even if one trader has dominated the market, consumers may simply recognise the product rather than the sign as a trade mark. As IPOS case law has noted, being the best-known trader using a generic sign does not equate to the sign having acquired distinctiveness as a trade mark.

Furthermore, granting a monopoly over a generic term would cause serious competitive harm — every other trader in the industry would be prevented from using the common name to describe their own products.

Industry Practice and Trade Jargon

Section 7(1)(d) also covers terms that have become customary in the established practices of the trade, even if the general public might not recognise them. This includes industry jargon, technical classifications, and trade shorthand that professionals in the field use as standard vocabulary.

For example, a term used by all traders in the pharmaceutical industry to classify a type of compound may be refused under Section 7(1)(d), even if the average consumer has never heard it. The relevant public, in this context, includes the professional trade audience.

Genericide: How Trade Marks Become Generic

A registered trade mark can lose its protection if it becomes generic through the owner’s acts or inactivity. Under Section 22(1)(c) of the Trade Marks Act, a mark may be revoked if, as a result of the acts or inactivity of the proprietor, it has become the common name in the trade for the goods or services for which it is registered.

This is a cautionary tale for brand owners. Failing to police the use of your mark — allowing it to be used as a generic noun rather than a brand adjective — can lead to the loss of registration through “genericide.”

Strategic Implications

• Avoid generic terms entirely: If your proposed mark is the common name for the product, do not file. The application will almost certainly fail, and even extensive use is unlikely to save it.
• Check industry usage: Before filing, research whether the term is used generically within the relevant trade, not just among the general public.
• Protect your mark from genericide: If you own a distinctive mark that is becoming synonymous with the product category, take active steps — such as always using the mark as an adjective (e.g., “BAND-AID brand bandages”) and challenging generic use by third parties.

Common Mistakes

• Assuming that market dominance equals registrability: Being the only or the most prominent trader using a generic term does not make it registrable. The term must function as a trade mark, not just as a product name.
• Confusing descriptiveness with genericism: These are different legal tests. A generic term is the name of the product; a descriptive term describes a characteristic of the product. The strategic and legal implications differ.
• Trying to register industry-standard abbreviations: If a technical abbreviation is used customarily in the trade, it falls within Section 7(1)(d) regardless of whether the general public understands it.
• Neglecting to police brand usage: Allowing your registered mark to be used generically in the media and by competitors can lead to revocation.

Key Takeaway

Section 7(1)(d) represents the final and most absolute bar against registering terms that belong to everyone. Generic terms are the common property of the trade, and no amount of use by a single trader can easily convert them into proprietary rights. For applicants, the message is clear: do not attempt to trade mark the name of your product. Build your brand with distinctive marks that sit above the generic line, and actively protect them from slipping into common usage.