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Article on Trade Mark may kick the bucket!!

June 1, 2012

All created things are impermanent. Strive on with diligence”.  These are the last words of Buddha before his death.  Perhaps it is more true in relation to the volatile conditions in the journey of pre-registration to post-registration of Trade Mark of your goods or services!

A Trade Mark registered for once, doesn't mean, your trade mark is a boundless promises that is yours for ever.  Technically, during the pre-registration process, once you apply for a Trade Mark and move ahead with no objections and oppositions your mark gets published in the Trade Mark Journal and finally get registered, that would make your day a business feast, because you can monopolize with your registered  mark spending huge monies in advertising and developing your own brand in the vast consumer market, and also you get inherent rights against infringement of your trade mark.  You can enjoy the hey days of your trade mark till the day your mark is not under litigation! The pleasant journey with your registered trade mark may get struck into laborious pains under the hood of litigation at any time even during the post registration period of your trade mark.  Litigation may hit from any side  by  your competitors having a substantial cause against your trade mark, non-competitors having some conflict with your trade mark name, or from any individual showing any cause with a public interest against your trade mark. Latest case law about Hindustan Unilever Limited winning a trade mark against Ayur, a mark of the respondents, Three – N – Products has once again baffled the trade mark industry about the  uncertainty of the permanence of the registered trade marks!  The Hon'ble Intellectual Property Appellate Board (IPAB) has given a very wide clarification regarding the deceptive similarity, descriptive, distinctiveness of a registered trade mark  Ayur being into the market at a stretch for over two decades and has lost its case due to the “blatantly dishonest and overreaching attempt to monopolize a word which is inherently generic.  The existence of the mark would obstruct the legitimate rights of various traders and manufacturers of the ayurvedic product” as said by Intellectual Property Appellate Board and ordered Trade Mark Office to remove the mark Ayur from from its register, upholding HUL's contention that Ayur is a generic term. The order of the IPAB has discussed in a length and breadth how the mark Ayur has monopolized the market for over two decades by misleading the Trade Mark Registry under the sections 9 and 11 of absolute and relative grounds of trade mark testing at the very instance itself, and wonder how come the Trade Mark Registry has registered the trade mark Ayur regardless of how the word is pronounced, resulted in the reign of terror.  The contention of the learned counsel on behalf of the Three – N – Products that, the registered mark Ayur is basically an invented word and is used for cosmetics and pharmaceuticals, but not for ayurvedic products.  The Hon'ble Judge verdicts that  a common man at the very instance, thinks the word 'Ayur ' means it is somehow related to ayurvedic product.  In India everyone knows what is Ayurveda rather than the meaning of PEPSI, COLA, KODAK which are typical invented marks.  Further the Board wondered how far the Respondent company Three-N-Products has obtained favoured decisions against 452 oppositions of the subject marks like AURA, SUPER MAYUR, AZUR, AURI, MAYOR, AYUTKA, AYURUH, AYERA, AVIR, AURUOLA, A-YOUR, AYUS, AYUSH, regardless of phonetic and pronunciation factors  and similarity and identical issues. This is a perfect case of reign of terror against other traders applied for trade mark registration.  The Board further agreed that “the applicant is correct in his submission that this is not a case where the mark needs to be compared with another mark. This is a mark which is publici juris and cannot be appropriated by any one.” It is to be noted that the IMRB report on the study conducted on ordinary consumer, retailers the findings were that when the word ayur was mentioned every one's response was to the Ayurvedic product or Ayurvedic brand or words to that effect.  The IMRB reports “the affidavit evidence and the kind of service persons and service providers who have adopted the mark, the inescapable conclusion is that “AYUR” is a generic word. It is not an invented word. It belongs to the public.” Therefore, is always a safe way to build your trade mark in a systematical approach.  The following are some of the suggestions to keep in mind while making your trade mark.
  • It is recommended to spend some time in the designing of your trade mark during the beginning stages, after all its your intellectual property which speaks about your product or services in the market.
  • An invented mark is preferable over the generics.
  • A rapid professional search of the mark is a good practice.
  • If there are any controversial or deceptively similarities, its better to keep away or make appropriate modifications before application of trade mark to avoid future conflicts.
  • Take dilegent care with regard to trade mark assignments.
  • An Intellectual Property Consultant advise is a must for a safe journey of your trade mark.
  Disclaimer: The entire contents of this document have been developed on the basis of relevant provisions and are purely the views of the authors. Though the author has made utmost efforts to provide authentic information however, the authors and the company expressly disclaim all and any liability to any person who has read this document, or otherwise, in respect of anything, and of consequences of anything done, or omitted to be done by any such person in reliance upon the contents of this document.
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