Chapter IV - Effect of Registration
Section 32
Section 32: Distinctiveness acquired after registration
A registration breaching section 9(1) can be protected if use gives it distinctiveness after registration and before challenge proceedings start.
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Need advice on Section 32?
This article is for general information. Refer to the Trade Marks Act, 1999 official text for the official provisions. If you need professional advice for your situation, contact Bizeneed.
Statutory text
Bare law
Where a trade mark is registered in breach of sub-section (1) of section 9, it shall not be declared invalid if, in consequence of the use which has been made of it, it has after registration and before commencement of any legal proceedings challenging the validity of such registration, acquired a distinctive character in relation to the goods or services for which it is registered.
Rule and business relevance
The protection is tied to acquired distinctive character for the goods or services registered and to the stated time window.
Limits and related provisions
It does not cure every registration defect, including every ground in section 9(2) or (3). Evidence acquired only after the relevant proceedings begin does not satisfy the stated timing.
Hypothetical business example
Hypothetical example: A mark initially lacked distinctiveness but acquired it through use before validity proceedings began. The proprietor tests the evidence against this specific protection.
Practical decision flow
Identify whether the defect falls within section 9(1).
Establish acquired distinctive character for the registered goods or services.
Map the evidence against registration and commencement of challenge proceedings.
Applying the Act and current procedure
Read the statutory rule together with the applicable Trade Marks Rules, current Registry directions and the facts of the particular mark. Forms, fees and procedural requirements should be checked against their current official source before filing.
Practical checklist
Do
- Identify whether the defect falls within section 9(1).
- Establish acquired distinctive character for the registered goods or services.
- Map the evidence against registration and commencement of challenge proceedings.
Avoid
- It does not cure every registration defect, including every ground in section 9(2) or (3). Evidence acquired only after the relevant proceedings begin does not satisfy the stated timing.
Glossary
- Post-registration distinctiveness
- Distinctive character obtained through use after registration.
- Challenge commencement
- The start of proceedings challenging validity, ending the stated acquisition window.
Frequently asked questions
Does this cure every invalidity ground?
No. It specifically concerns registration in breach of section 9(1).
When must distinctiveness be acquired?
After registration and before commencement of the relevant validity challenge.
Must it relate to the registered goods or services?
Yes. That is part of the stated condition.
Need help applying this provision to your situation?
Contact BizeneedLast updated 10 October 2026