08 January 2018

Protection of generic word bestowed with greater degree of burden of proof

The Delhi High Court in a case of trademark infringement and passing off has rejected the contention for protection of a generic word ‘AYUR’ as trademark.
The plaintiff had contended that the word ‘Ayur’ is invented by them and it has no meaning whatsoever. They also pleaded that because of its extensive use it has acquired distinctness and is identifiable only with their goods.

The Court in the case Three-N-Products Pvt. Ltd. v. Kairali Exports however, noting that the protection of a trademark is dependent on whether the mark adopted is generic, descriptive, suggestive, arbitrary or fanciful, held that  plaintiff’s claim ex-facie was incorrect as the word ‘Ayur’ means ‘life’ and is used extensively in Hindu Vedic texts.

Quoting Section 17(2) of The Trademarks Act, 1999, it was held that the plaintiff having adopted a mark, which is generic or descriptive, cannot claim legal protectability and that the burden of proof on the person claiming distinctness in such case is much higher.

It was held that word “Ayur” is neither an arbitrary nor a fanciful mark having a higher level of legal protection, and thus the plaintiff cannot prima facie claim any proprietorship on the word “AYUR”.

Comparing the two marks “Ayur” and “Ayurvastra”, the Court was also of the view that the two marks were completely distinct and different, used in completely different style, design and getup. 


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