The Chennai-based Intellectual Property Appellate Board (IPAB) has cancelled the popular trademark 'AYUSH' belonging to the consumer and healthcare major Hindustan Lever Ltd (HLL), and ruled registration of the mark as illegal.
The decision of the IPAB, consisting of chairman Justice S Jagadeesan and vice chairman, Dr. Raghbir Singh, is based on two separate cases, filed jointly by the Central Council for Research in Ayurveda and Siddha (CCRAS) and National Research Development Corporation (NRDC), both Central Government organizations, and another suit filed by Three-N-Products Ltd., New Delhi. Both suits sought cancellation of the Ayush trademark awarded to HLL. The court considered its decision on the case filed by Three-N-Products, and found it also applicable to the case filed by CCRAS and NRDC, and pronounced both the decisions on 11th March, 2005, sources informed Pharmabiz.
It may be noted that a section of the Ayurvedic community, especially in Kerala, had protested against allowing a private company to secure rights of an Ayurveda related word when the trademark issue came to light two years ago. Following this, CCRAS and NRDC sought cancellation of the mark, as per the case ORA/2/2004/TM/CH, which came up before IPAB for its decision.
Three-n-Products, manufacturer of 'Ayur' range of personal care products, is engaged in a prolonged legal war with HLL over the issue. Two years ago, Three-n-Products approached the Ernakulam district court and obtained an interim order of injunction restraining HLL from using the trademark 'Ayush'. Three-N-Products contended Ayush is similar to its trademark Ayur, and the word Ayush stands for a general nomenclature related to India's traditional Ayurveda. HLL got the stay vacated during March 2003.
Meanwhile, HLL now markets its herbal healthcare products under 'Lever Ayush' brand. In June 2002, HLL announced the launch of Lever Ayush ayurvedic health and beauty care products, endorsed by the Coimbatore Arya Vaidya Pharmacy, in a strategic tie-up. At present, the Lever Ayush range includes five popular products - Cough Nashak syrup, Headache Naashak Roll On, Hair Poshak Oil, Dandruff Nashak shampoo and Body Rakshak soap, claimed to be India's first Ayurvedic anti-septic soap. The products are claimed to have been developed after many years of research. HLL also has set up Ayush Ayurvedic Science Centre to promote Ayurvedic research, and is in the process of setting up Ayush Therapy Centres in different parts of the country.
Background of the case is that the Guntur-based Jocil Ltd., formerly known as Jayalakshmi Oil and Chemical Industries Ltd., registered the mark 'AYUSH' during 1987 for soaps and detergents, and the certificate was issued on 12.8.1994. However, Jocil did not renew the mark during 1994 and 2001, the time for renewal after seven-year validity period. Hindustan Lever, which launched its Ayurvedic range of products in 2002, bought the rights of the trademark from Jocil by an assignment deed dated 15.5.2002. Then HLL attempted to legalize the registration of the impugned mark, filed Forms TM 12 and TM 13 for renewal and restoration of the mark and paid a sum of Rs 5,300 towards the registration.
The counsels for the petitioners contended before IPAB that the Registrar of Trade Marks, Chennai, the third respondent, allowed the renewal without considering the tenacity of the application and without checking whether the renewal was valid or not, and HLL managed to register the mark by suppressing the relevant particulars and thereby committed a fraud.
The IPAB ruled that the registered proprietor of the trademark did not make the application for renewal and consequently the application filed by HLL ought to have been rejected and the trademark authority should not have renewed the mark. The renewal made by the HLL in the name of Jocil, who never made any application for renewal or for restoration, has to be held as illegal and unsustainable under law. Consequently, the renewal ordered by the Registrar of Trademark is liable to be set aside resulting in the rectification of the Register, decided IPAB.