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Distinctly Confusing: Clarifying the Applicability of Acquired Distinctiveness under Singapore Trade Mark Law

Vignesh Vaerhn & Avery Yew

(2022) 34 SAcLJ 621

Recent decisions and articles have highlighted a schism as to how acquired distinctiveness is to be considered under Singapore law when evaluating competing trade marks for the purposes of trade mark opposition, invalidation and infringement. The persistence of this schism has divided those who practice in the field of Singapore trade mark law and has caused, to borrow an oft-used term in this area of law, confusion. This has resulted in competing views, diverging analysis and unfortunately, no consensus amongst those who adjudicate over trade mark matters in Singapore. This article examines the jurisprudence relating to acquired distinctiveness in Singapore trade mark law and argues that the schism is resolvable. This article proposes a solution to the schism that is legally and conceptually consistent with the established principles in Singapore trade mark law, and further highlights other conceptual difficulties with acquired distinctiveness that deserve greater scrutiny over the schism.