Misspelt but Memorable: The Legal Life of Misspelt Trade Marks in India

"Let’s name it ‘Lyft’- like ‘Lift’, but cooler."

That, one imagines, was the kind of offbeat eureka that launched one of the world’s most recognisable ride-sharing brands. “Lyft” is now a textbook case of how a subtle deviation in spelling can infuse a brand with distinctiveness, visual appeal, and, crucially, a better shot at trade mark protection.

But what happens when this deliberate distortion treads into legally ambiguous territory - descriptive, deceptive, or even distasteful?

As intellectual property practitioners, we frequently navigate this odd and often treacherous corridor where branding creativity meets statutory scrutiny. This article unpacks the curious legal journey of misspelt trade marks in India: when they work, where they falter, and how brands can wield them strategically without stumbling into pitfalls.

In a saturated consumer economy, misspellings have evolved into deliberate branding tools. From “Krispy Kreme” and “BLVCK Paris” to “Nykd”, these deviations help brands stand out, secure domain names, and appeal to digital-savvy audiences.

However, what works in marketing doesn’t always pass muster in the legal theatre of trade mark law, especially in India, where statutory and judicial interpretations lean toward consumer clarity over creative flair.

Under Section 9 of the Trade Marks Act, 1999, marks that are descriptive or lack distinctiveness are barred from registration. Many misspelt marks originate from generic terms. So the test lies in whether a creative spelling sufficiently departs from the descriptive term, or does it merely disguise it?

For instance, “SHOEZZ” for footwear remains phonetically identical to “Shoes." Unless secondary meaning is shown through use, it likely faces rejection.

The courts have echoed this sentiment in PhonePe Pvt. Ltd. v. Ezy Services & Anr. CS (COMM) No. 292 of 2019, the Delhi High Court held that the suffix “Pe” (a stylised “Pay”) was descriptive in the fintech context. PhonePe’s creative spelling didn’t qualify for protection. The Court noted that phonetic similarity to generic terms isn’t shielded by orthographic invention.

By contrast, in ITC Ltd. v. Nestle India Ltd, 2013 (53) PTC 493 (Del), the Court allowed registration of “Kwality Walls”, holding that secondary meaning through extensive use could overcome descriptiveness. Similarly, Delhivery Pvt. Ltd. v. Treasure Vase Ventures Pvt. Ltd., 2022 SCC OnLine Del 2634 upheld protection of “DELHIVERY” for having acquired distinctiveness despite its phonetic similarity to “delivery”.

Section 11 bars registration of deceptively similar marks. Courts adopt a consumer-centric approach, factoring in imperfect recollection and overall commercial impression.

In Starbucks Corp. v. Sardarbuksh Coffee & Co. CS (COMM) 1007/2018, the Delhi High Court ruled that the humorous twist in “Sardarbuksh” didn’t shield it from being confusingly similar to “Starbucks”. Creativity does not excuse consumer confusion.

Occasionally, brands flirt with misspellings that edge into moral or cultural sensitivities. The FCUK Phenomenon: French Connection UK’s brand name, designed to shock, resembled a swear word. It stirred regulatory heat globally and faced objections on moral grounds.

In India, Section 9(2)(c) prohibits registration of marks that are obscene or scandalous or hurt religious susceptibilities. Indian authorities have refused registration to stylised variants resembling profanity, even where spelt innocently. For instance, an Indian apparel applicant (Class 25, App. No. 5474905) faced refusal for a mark resembling offensive language, despite the stylised misspelling.

Misspelt trade marks offer several commercial benefits. They may help evade existing trade marks, secure easier domain name registration, and resonate with younger audiences attuned to text-speak and internet slang. Brands like Zypp Electric (from "Zip") or Froot Loops are examples of this trend.

But such marks are prime cybersquatting targets. In Yahoo Inc. v. Akash Arora, 1999 PTC (19) 201 (Del), the Court found that minor domain name changes still caused confusion and granted relief. Spelling differences are not a defence if public confusion arises.

Recent behavioural research adds another layer. A 2023 study in the Journal of Marketing found that consumers often perceive misspelt names as gimmicky. Consumers showed:

- 13.6% preference for “Clear” over “Klear”;

- 33.6% higher purchase intent for “Fresh” over “Phresh”;

- Decreased trust unless the misspelling was contextually justified. 

Unusual spellings must align with brand values or purpose; otherwise, they risk undermining credibility. Per the study, unusual spellings are often seen as marketing tactics to appear trendy, which can come across as disingenuous and lead to negative reactions and reduced purchase intent.

Having said that, when done strategically, misspellings can produce strong marks:

- Tumblr: Suggestive, tech-savvy, and distinctive.

- Flickr: phonetically intuitive but not descriptive.

- Google: a twist on “googol”, with no prior meaning.

These examples succeed because their distinctiveness is not superficial; it's conceptual and rooted in function as source identifiers. The regulators often note that misspellings only work when they are striking, surprising, or demand mental effort, such as D’LICIOUS instead of “Delicious”.

BVLGARI, the Italian luxury brand, offers a compelling example of how a deliberate misspelling/ stylised spelling can transform a brand name into a distinctive and legally protected trade mark. It stylises its name with a “V” in place of “U” (Latin orthography) to reflect its Roman roots. This historical styling enhances its uniqueness and global appeal.

BVLGARI holds registrations for both “BVLGARI” and “BULGARI”, covering a wide array of goods and services. The brand also registers design elements like SERPENTI, B.ZERO1, and its Hindi transliteration बुल्गरी, showing a comprehensive strategy.

As a trade mark counsel, we often advise clients that creative spelling is not a legal silver bullet, and the  below checklist for navigating this space should be kept handy:

1. Avoid mere phonetic alterations of descriptive terms. If “Bright Kleen” is just “Bright Clean”, it's still descriptive.

2. Secure both original and creative variants for protection and use.

3. Don’t assume humour or edginess equals registrability. Be especially cautious of marks that may offend public decency or cultural sensitivities.

4. Aim for suggestive or fanciful constructions. If it makes people think (rather than just describe), you’re in safer territory.

5. Secure evidence of acquired distinctiveness if the mark has been in long-standing use.

6. Always conduct a thorough availability search, because a clever misspelling may already be taken.

Consequently, misspelling is not a free pass to registrability or enforceability. The Indian courts consistently hold that distinctiveness must be substantive and not merely orthographic.

Enforcement, too, is complicated. Under Section 29, infringement includes unauthorised use of similar marks. But proving deceptive similarity is harder with altered spellings. Courts assess phonetics, structure, trade channels, and consumer impression.

In passing off, brands must prove misrepresentation and the likelihood of confusion. With online visibility dominating, the burden of proving bad faith grows heavier. Defendants may claim creativity or coincidence, further muddying enforcement waters.

Misspelling, when done right, is both art and strategy. It can unlock registrability, attract attention, and convey uniqueness. Whether you’re launching a new start-up or rebranding an existing product, remember: distinctiveness, not just different spelling, is what the law values.

So, go ahead, bend the dictionary if you must. But don’t forget to ask your trade mark attorney before you try to “Kreate Kool Kleaning Koncepts” for your business. Because in the world of trade marks, a clever twist today can become a litigation tangle tomorrow.

In the grander scheme, the judiciary has been consistent: creativity is welcome, but consumer clarity is paramount.

About the authors: Mehr Bajaj is a Senior Associate and Mehak Sidhu is an Associate at Sim and San.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

If you would like your Deals, Columns, Press Releases to be published on Bar & Bench, please fill in the form available here.