May 22, 2012

Intellectual Property Appellate Board rules ‘Ayur’ can’t be trademark


R. Sivaraman

Can anyone in India, the home of Ayurveda, claim exclusive intellectual property rights over the word ‘Ayur' for selling a product? Or contend that ‘Ayur,' a word derived from ‘Ayush' (life), is an ‘invented word' that can be used as a trade mark?

The Intellectual Property Appellate Board (IPAB) has ruled that it cannot be done and directed the removal of the word ‘Ayur,' registered in the name of Three-N-Products (P) Ltd., New Delhi, from the trade marks registry. 

In its order delivered on Friday, the IPAB said: “Ayur is a generic word; to hoard it as ‘mine-own-forever' is not in public interest, and such a monopoly was never intended by the Trade Marks Act, 1999.”
Hindustan Unilever Limited (HUL) launched its line of Ayurvedic health and beauty care products under the trade mark ‘Lever Ayush' in 2002. Noting that the Registrar of Trade Marks, New Delhi, had granted registration of the mark ‘Ayur' for products of Three-N-Products (P) Ltd, HUL sought rectification of the mark ‘Ayur,' contending that it is a commonly used word and a derivative of the word Ayurveda, a 5,000-year-old system of medicine. 

Three-N-Products had filed a suit in 2003 in the District Court of Ernakulam wherein it was contended that ‘Lever Ayush' of HUL was deceptively similar to its own product. Following this, HUL approached the IPAB with applications to remove ‘Ayur' from the trade mark registry.

However, Three-N-Products claimed it is the registered proprietor of the mark ‘Ayur.'
The word was an invented one and it had nothing to do with Ayurvedic products. It started with manufacture of bleaching preparations which include soaps, nail polish and diversified its activities. The mark deserved continuous protection. After hearing arguments by both sides in New Delhi, where it held a circuit bench sitting, the Board, comprising its chairperson, Justice Prabha Sridevan and vice chairperson, S. Usha, pronounced the order here. 

Allowing the applications filed by HUL with costs of Rs.20,000 each, the Board said, “We are of the opinion that in public interest the word ‘Ayur' shall not remain in the register. We are unable to understand how the Registrar allowed the registration. Public interest would be harmed if this mark remains in the register thereby preventing other persons in our country access to a common Indian word denoting an ancient system of medicine.”

Rejecting a contention of Three- N- Products that Ayur is an invented word, the IPAB pointed out that the word was associated in the public consciousness with ‘Ayurveda' and ‘healthy life' and no one could appropriate it to oneself.


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