The Intellectual Property Appellate Board (IPAB) has allowed a rectification appeal by FMCG major ITC, with regard to ?Ayur? trademarks for food stuff of different categories, as obtained by Delhi-based Three-N-Products.
Ruling in favour of ITC, the IPAB said that Ayur is a generic word, hence no one can claim exclusivity over it. It ordered removal of Ayur marks from the Trademark Register. ITC had been restrained from using Ayur mark for their food products ranging from meats to cooked fruits, vegetables to jellies and jams to edible oils.
Three-N-Products has been fighting a slew of cases in various high courts, Trade Mark Registry and the IPAB itself, claiming exclusivity of registration for Ayur mark for different class of products, including cosmetics. In Hindustan Unilever versus Three-N-Products case in 2012 , with regard to cosmetic and pharma products, the IPAB had earlier held that Ayur is a generic word and in public interest, it cannot be monopolised by anyone.
The IPAB bench, comprising justice Prabha Sridevan, chairman and S Usha, vice-chairman, said: ?We do not find any reason to differ from our earlier view. Therefore, for the reasons which persuaded to us to remove the mark in all other cases and on the facts of this case too, we allow the rectification application?.
The IPAB observed that the applicant had been prevented from marketing its goods by an injunction order. ?It is true that the suit had been withdrawn. But the respondent had reserved its liberty which again meant that at any time the applicant ventured into the market with its goods, the company may face a litigation. This is sufficient to make the applicant a person aggrieved?, the IPAB order said.
The applicant had sought revocation of the marks on the ground that the marks have not been used and these were not distinctive of the goods of the respondent. The respondent filed counter statement claiming that they had been engaged in the manufacture of cosmetic products, ayurvedic formulas, body case and health care products since 1984 under the trade mark Ayur . They had obtained registration in respect of several goods in several classes and in several countries. They had acquired considerable reputation and have spent huge amounts in respect of the trade mark Ayur. The respondent contented that the applicant is not a person aggrieved.
According to the respondent, the trade mark Ayur is an invented word. They argued that the Calcutta High Court has also restrained Karnataka Soaps and Detergents from using Ayur Care .
The IPAB said that it was unfortunate that the Registrar who registered the first mark Ayur for the respondent, had not endorsed that the respondent will not have an exclusive right to Ayur.
?If he had done that, the respondent may have come up with modifications. Further, with such a registration, the respondent would not have ventured to launch an attack on anyone who ?dared? to use Ayur anywhere in their marks. If the respondent had not attacked others and had dealt with the mark as a label mark, claiming no exclusive right to the letters Ayur perhaps this mark would not have been challenged. The Registrars who are vested with the important duty of deciding which marks are registerable should make their decision wisely and correctly.?