Trademark Secondary Meaning in India: Lessons from Wow Momo v. Wow Burger

Can you really own the word “WOW” in India’s crowded food market? That’s the deceptively simple yet legally complex question the Delhi High Court tackled in Wow Momo Foods Pvt. Ltd. v. Wow Burger [CS(COMM) 1161/2025].

This case has sparked attention not just because it pits two popular food businesses against each other, but because it forces us to confront a fundamental principle of Indian trademark law: when does a descriptive or generic word stop being “just another word” and start acting as a source identifier for a single brand?

At Apar Law, we see this dilemma play out daily for Indian startups, D2C brands, and fast-growing consumer businesses that lean on catchy, trendy, and often descriptive names. The Delhi High Court’s analysis offers a masterclass on trademark distinctiveness, secondary meaning, and the limits of exclusivity under the Trade Marks Act, 1999.

What is Trademark Secondary Meaning in India?

“Secondary meaning” is when consumers stop treating a descriptive/common term as everyday language and start recognizing it as a badge of origin, a source identifier for one business. In practice, this transforms terms that are otherwise weak (e.g., WOW, FRESH, NATURAL) into protectable assets but only after sustained, provable market association.

In Godfrey Phillips India Ltd. v. Girnar Food & Beverages (2004), the Supreme Court underscored that the burden of proof lies with the brand claiming distinctiveness.

Translation: you must show the court your mark means you.

The Legal Foundation: Section 9(1)(b) Trade Marks Act, 1999

• Baseline rule: Section 9(1)(b) bars registration of trademarks that are descriptive of goods/services.

• Exception: If the mark has “acquired a distinctive character as a result of use,” it can be registered and enforced.

• Practical reading: The law rewards brands that educate the market through use, promotion, consistency, and enforcement until consumers link the term uniquely to them.

  
  

Criteria for Acquired Distinctiveness: Key Case Law in India

Courts in India rely on a set of well-established factors to determine whether a mark has acquired secondary meaning. Let’s break them down with case law:

1. Duration and Manner of Use

   • Longstanding use can build consumer association.

   • In ITC Ltd. v. Britannia Industries Ltd. (2016), the Delhi High Court observed that the key question is not just how long the mark was used, but whether that use created recognition in the minds of consumers.

2. Sales and Turnover Figures

   • Substantial sales volumes help prove that the market links the mark to one source.

   • In Cadila Health Care Ltd. v. Gujarat Co-op Milk Marketing Federation (2009), the Court acknowledged that significant sales can support a claim of acquired distinctiveness.

3. Advertising and Promotional Spend

   • Advertising doesn’t just push sales, it builds brand identity.

   • As held in Godfrey Phillips (2004), extensive advertising can, by itself, establish secondary meaning if it successfully educates consumers.

4. Consumer Recognition and Surveys

   • Nothing speaks louder than consumer perception.

   • In Whirlpool Co. v. Registrar of Trade Marks (1998), the Court upheld Whirlpool’s reputation in India despite no physical presence, based solely on recognition and goodwill.

5. Exclusive Use and Enforcement

   • If you don’t defend your mark, you risk diluting it.

   • In Marico Ltd. v. Agro Tech Foods Ltd. (2022), the Delhi High Court warned that failing to police your mark undermines any claim of secondary meaning.

6. Media Recognition and Public Perception

   • Awards, press coverage, and industry buzz act as credible indicators of distinctiveness, especially in fast-moving consumer markets.

The Challenges of Proving Trademark Secondary Meaning

• High Threshold of Proof: Courts expect hard evidence — not just long use or self-assertion.

• Generic Words Struggle: Terms like “Fresh,” “Best,” or “Natural” rarely cross the legal threshold.

• Crowded Markets: If many businesses use the same word, distinctiveness becomes harder to prove.

  In Wow Momo v. Wow Burger, the Delhi High Court asked the practical question: in India’s crowded food sector, can “WOW” realistically be monopolised by one brand? The Court leaned toward skepticism, highlighting how crowded markets dilute distinctiveness.

Why Wow Momo v. Wow Burger Matters for Indian Startups

For startups and entrepreneurs, the ruling is a reality check. A descriptive, catchy name may seem like a quick win with consumers, but unless you invest in building distinctiveness, your legal rights could be limited.

• Building secondary meaning requires:

• Documenting turnover and marketing spend,

• Commissioning consumer perception surveys,

• Ensuring media visibility, and

• Enforcing rights consistently against infringers.

At Apar Law, we regularly guide founders, D2C brands, and corporates through this brand-building journey, helping them not just with trademark filing, but with the strategic enforcement and evidence-building that transforms a descriptive word into a legally defensible asset.

Building Secondary Meaning: A Strategic Roadmap for Businesses

Apar Law’s evidence-first blueprint for descriptive marks:

• Name audit & risk grading: Score your brand on distinctiveness; if descriptive, set an evidence plan from launch.

• Use discipline: Standardize logo/wordmark use, packaging, taglines, and TM notices across touchpoints.

• Evidence stack (create & curate)

  • Year-wise turnover, ad spends, market share snapshots

  • Geographic spread and channel-wise penetration

  • Consumer surveys (professionally designed and statistically sound)

  • Media coverage, awards, influencer/industry mentions

  • Digital analytics: branded search trends, CTR, unique visits, engagement

• Market policing & brand hygiene: Watchlists, demand letters, settlements, and strategic suits to preserve exclusivity.

• Filing strategy: Where appropriate, pursue acquired distinctiveness evidence with your applications; file composite/device marks tactically as interim moats.

• Governance: Internal SOPs for brand use, approvals, and enforcement budgeting so the record stays clean and court-ready.

Perspective: Distinctiveness as a Legal & Business Strategy

For descriptive brands, legal strength is a by-product of market discipline. We partner with founders, legal teams, and CMOs to:

• Select protectable marks or design hybrid portfolios (word + device + slogan).

• Build courtroom-grade evidence files over time.

• Run watch & enforce programs that deter copycats—without draining budgets.

• Align trademark timelines with fundraising, launches, and expansions, so IP risk doesn’t derail growth.

Final Takeaway: Secondary Meaning is Earned, Not Claimed

The Delhi High Court’s message is clear: you don’t “own” descriptive words by default, you earn exclusivity by proving consumer association. If your brand banks on a term like WOW, your legal moat isn’t the word, it’s the evidence you build around it.

Action for founders & legal heads:

• Be intentional with name selection.

• Start evidencing from day zero.

• Treat enforcement as brand building, not a last resort.

• Apar Law can help you transform descriptive marks into defensible, growth-ready assets, from strategy to enforcement.