Ayur- Generic Term or not?

India is the home to the science of Ayurveda. Recently, the question of whether ‘Ayur’ could be monopolized as a trademark was sought to be answered in an order passed by the Intellectual Property Appellate Board.

Alex Hotels and Resorts, Bangalore have been using the mark ‘Ayurtheeram’ since 01/06/2005 and were granted registration for the said mark under Application no. 1384396 in the Indian Trade Marks Registry. Three-N-Products (P) Ltd., was granted registration of the mark ‘Ayur’ for their products which mainly consisted of hair, skin, and face care products. Their brand ‘Ayur’ was in business since 1984 and had manufactured almost 155 variants in their products. Three-N-Products filed an appeal in the IPAB against the registration of the mark ‘Ayurtheeram’ used by Alex Hotels and Resorts claiming that it was a dishonest adoption of the mark and they intended to trade upon their goodwill and reputation.

The appellants (Three-N-Products) launched its brand ‘Ayur’ for mainly hair, skin, and face care products. They were in business since 1984 and had manufactured almost 155 variants in their products. They also had foreign registrations, copyright registrations and since they were using the mark continuously and extensively, there was a possibility of confusion and deception caused for the appellant’s mark ‘Ayur’ and the respondent’s mark ‘Ayurtheeram’. Moreover, the Learned Registrar did not consider the fact that the appellants have been using the mark earlier than the respondents and the explanation of the adoption of the mark by the respondents has also not been clearly explained. Further, the appellants also had hotels registered in class 42 and a mark ‘Ayurgram’ which has been registered from 2003.

The respondents, on the other hand, contended that they have been using the mark since 2005 for their hotels. They stated that they have coined the word from ‘Ayu’ which means ‘life’ and ‘Theeram’ which means ‘land’. Further, they stated that ‘Ayur’ is a generic term and the appellants cannot have a monopoly over it. It was adopted in a bona fide manner and the fact that it was in conjunction with other words, strengthens their bona fide use. The State also honored them with the Green Leaf classification which makes it well known in the state.

The main question arose about whether ‘Ayur’ could be monopolized as a trademark or not.

The IPAB held that the word ‘Ayur’ or ‘Ayu’ cannot be said to be an invented word since it directly denotes the science of Ayurveda. They rejected the contention of the appellants that the word ‘Ayur’ should be used only by them and no other. They further held hat ‘Ayur’ and ‘Ayurtheeram’ were not at all identical or deceptively similar. Further, the ‘Green Leaf’ classification which was granted to the respondent showed their enhanced reputation in their state. The word was associated in the public consciousness with ‘Ayurveda’ and ‘healthy life’, hence no one could appropriate it to oneself. The order further directed for the removal of the word ‘Ayur’ and its other variants which were registered in the name of Three-N-Products, from the Trade Marks registry.

It’s a short story cut even shorter but is indeed embarrassing that Three-N-Products lost their own Trade Mark while trying to seize another’s, Trade Mark.

About the Author: Ms. Madhuri Iyer, Trade Mark Associate at Khurana & Khurana and can be reached at Madhuri@khuranaandkhurana.com

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