Himalaya Drug Company vs Gufic Limited

S. Usha, J

The rectification application has been filed for removal of the trade mark 'SALLAKI' under registration No. 385295 in class 5. The applicant herein

is a partnership firm registered under the Partnership Act, 1932. The applicant submits that the word 'SALLAKI' which has been derived from the

Sanskrit word 'SHALLAKI' describes the herb used in the product and cannot be used as a trade mark. Being descriptive of the character and quality

of the product, the word 'SALLAKI' is incapable of registration. The word 'SHALLAKI' is a generic word or common word which is well illustrated

in one of the oldest Ayurveda Series named 'Bhavaprakashanighantu'. Inspite of the word 'SALLAKI' being a generic word, the Respondent herein

has obtained the registration dated 31st July, 1985 which is merely derivation of the actual word 'SHALLAKI'. The word 'SHALLAKI' is the Sanskrit

name of a herb, which in Latin is known as 'Boswellia Serrata' and in English it is known as 'Boswellia'. The Respondent cannot have any exclusive

right over the word 'SHALLAKI'. For instance 'Tulasi', 'Neem"" etc., are generic words and are not registrable as trade marks. The applicant has filed

M.P. No. 116/07 to condone the delay in filing affidavit of evidence in support of rectification application. The Respondent has filed M.P. No. 220/08

for taking on record additional documents being exhibits I-L and M.P. No. 22/10 to take on record additional documents being exhibits M Series and

M.P. No. 99/10 for urgent hearing of the matter.

The applicant submits that the word 'SHALLAKI' has been adopted by several companies like 'Passion for Life Products' manufacturing

'SHALLAKI' and ""Nature's Formularly"" for their products having an ayurvedic base, while some have called it 'SHALLAKI' others have either

adopted mere aberrations of the actual word 'SHALLAKI' the name of the herb as named in Sanskrit like ""RASNA SHALLAKI' manufactured by

M/s Vyas Pharmaceuticals, Indore. The applicant also submits that various manufacturers and distributors of non-allopathic drugs have been

manufacturing /distributing capsules containing Boswellia or SHALLAKI under various brand names.

The applicant submits that the Respondents being a pharmaceutical company is well aware that 'SHALLAKI' is a name of a herb and hence it is a

generic word for which there cannot be any monopoly of use by anyone and the Respondents in the present case. The applicant is a well established

name in the field of ayurveda, manufacturing and marketing a wide range of ayurvedic medicinal and health products since 1930 and has thus earned

wide credibility and good reputation in both domestic as well as international markets for the past 72 years.

The applicant submits that since the year 1999 the above said products have been manufactured by the applicant and marketed under the then

brand name 'SINGLES BY HIMALAYA' which have their own unique appearance with the name of their respective herbs example 'BOSWELLIA

SERRATA' or 'SHALLAKI'. Thereafter in February, 2002 the same product has been re-launched for the benefit of the customers under the brand

name 'HIMALAYA PURE HERBS - SHALLAKI'. The said products have been manufactured by the applicant not only in Indian market but in the

international market too.

The applicant on launching a wide range of over-the-counter products under the brand name 'HIMALAYA PURE HERBS' have their unique

appearance, colour scheme, trade dress with the name of the respective herbs used in each of the products attached to the brand name 'HIMALAYA

PURE HERBS'. The applicant is a law abiding firm complying with all the requirements of law before adopting any trade mark for any of its products

and proper trade mark searches have been conducted while adopting any mark for its products. All such products of the applicant are in distinctive

trade dress of the products of the firm and are readily identifiable by the public at large. The applicant has adopted number of trade marks like Liv 52,

Bonnisan, Piliex, Rumalaya etc. It is submitted that the applicant at no point of time adopted the word 'SHALLAKI' as a brand name. In fact the

product bearing the mark Rumalaya Forte contains SHALLAKI and ingredients such as Guggullu which are known for their proven efficiency in joint

care.

The applicant submits that as per the provisions of Section 9 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act),

the impugned trade mark 'SHALLAKI' ought not to have been registered. The word 'SHALLAKI' is not capable of distinguishing the goods or

services of one person from that of other and further designates the kind, qualities or values of the products as such and cannot be registered as a

trade mark.

The applicant has filed this rectification application pursuant to the Suit No. 4/2002 filed in the Court of District Judge, Thane by the Respondent

herein against the applicant herein for infringing the registered trade mark SALLAKI against the HIMALAYA PURE HERBS-SHALLAKI.

Pursuant to Section 100 of the Trade Marks Act, 1999 the matter has been transferred from the High Court of Bombay to this Board and the same

has been re-numbered as TRA/2/2006/TM/MUM.

The applicant thus being an aggrieved person has filed the instant rectification application on the following grounds:

a) The registration granted is contrary to the provisions of Trade and Merchandise Marks Act, 1958.

b) The Registrar erred in granting registration for the word SALLAKI which is a generic term and describes a particular herb in Sanskrit.

c) The grant of registration for the word SALLAKI is unsustainable in law.

d) The registered trade mark is wrongly remaining on the Register without sufficient cause.

e) The registration granting monopoly over the term to the Respondent would prejudicially affect the interest of the applicant and such other

companies which are manufacturing herbal products containing shallaki as an ingredient.

f) The registration granted for the word SALLAKI is unsustainable on the ground that SALLAKI is a mere derivation of the actual word

SHALLAKI.

g) The impugned trade mark is not a combined expression but a direct derivation from SHALLAKI and no registration ought to have been granted.

The application for rectification therefore deserves to be allowed by cancelling the registration granted.

The Respondent herein filed their counter statement denying the various averments made in the application for rectification. The Respondent

denied the averment that the trade mark SALLAKI is a generic word of a plant and descriptive of the product and cannot be registered as a trade

mark under the provisions of the Act. The other main averment was that the applicant has not impleaded the Registrar as a necessary party to the

rectification application and therefore the application is bad in law for non-joinder of necessary party and is liable to be dismissed with costs.

The Respondent stated that the applicant has no cause of action for filing the rectification application and the instant rectification application was

only a counter-blast to the suit filed by the Respondent against the applicant before the District Judge, Thane. The Respondents are the registered

proprietors of the trade mark SALLAKI since the year 1982 and as such the registration of the impugned mark has become conclusive and the

applicants are not entitled to file the application for rectification. The same is to be dismissed with costs.

The Respondent reliably understands that the applicants are now not the proprietors of any of the marks as they have assigned the trade marks to

one M/s MMI Corporation, one of the partners of the said firm M/s Himalaya Drug Company and as such not entitled to file the instant rectification

application in their name.

The Respondent Company is engaged in the business of marketing, manufacturing pharmaceutical, ayurvedic and medicinal preparations and have

adopted various trade marks in respect of their products such as ROLL ON, SALLAKI etc., to protect their natural and intellectual property rights in

the trade circle in respect of various products.

In the year 1981-82 the Respondent decided to have anti-arthritic medicines to prevent cartilage damage in joints of arthritic patients. After long

search in this field, the Respondent company decided to manufacture ayurvedic medicine out of the gum resin extracted from the botanical plants

known as Boswellia Serrata, the gum resin of which is known in Hindi as Salai Guggal and in Sanskrit as Kunduru. Accordingly the Respondent's

research and development department after conducting scientific studies and clinical trials of the said Boswellia Serrata extract prepared a formula of

their own and started manufacturing such medicine in tablet and ointment form.. For the purpose of marketing the said product, the Respondent

adopted a suitable word mark and for that purpose to honour the Indian traditional system of ayurveda, the Respondent decided to coin some name

from Sanskrit which is not commonly known and / or spoken by public at large. The Respondent therefore stuck upon the word SALLAKI which is

adopted from SHALLAKI one of the numerous names in Sanskrit of the plant Boswellia Serrata Roxb.

The Respondent found that the word SALLAKI adopted out of the said word SHALLAKI is one of the various names in Sanskrit will be most

appropriate for their product in as much as the same being taken from a Sanskrit word. The word SALLAKI has no direct reference to the product.

The said product is made by special technique out of the gum resins extracted from the said plant Boswellia Sarrata Roxb. The various parts of said

Boswellia Sarrata are used as medicine for various ailments and each part is know by different names. The Respondent submits that the word

SALLAKI is itself not descriptive of the product and is registrable as a trade mark under the provisions of Section 9 of the Act.

The Respondent's product sold under the trade mark SALLAKI since 1981 is well received by the trade and has thus acquired good reputation not

only in India but also in foreign countries. The word SALLAKI has acquired secondary significance and is also associated exclusively with the

Respondents and hence is distinctive. The Respondents have spent and incurred a heavy expenditure on research and getting formulation prepared for

the said product and thus it will be seen that the word SALLAKI is not descriptive of the word for which the trade mark is used. The trade mark

SALLAKI is distinctive by itself.

The Respondents have stated that their trade mark SALLAKI in respect of medicinal preparations has been extensively advertised through

various medias and large amount of money has been spent towards advertisement and promotion of the said product. The Respondents have also filed

copies of invoices disclosing the sale of the said product. The Respondents have been vigilant in protecting their statutory rights and have issued

caution notice claiming exclusive proprietary rights over the trade mark SALLAKI by virtue of exclusive use of the trade mark. The said trade mark

has become associated with the Respondents and with none else. The Respondent further stated that the instances given by the applicants of Tulsi,

Neems are ridiculous and absurd as tulsi and neem are commonly known by general public throughout India by the said use. The word SALLAKI is

not known to the general public. As far as the Respondent's knowledge is concerned they are not aware of any other person using the word

SALLAKI and wish to take immediate action if they come across the trade mark in the market.

The word SALLAKI is not a generic word for the said plant. The same was adopted from one of the many Sanskrit names of the said plant

botanically known as Boswellia Serrata which is a generic name of the said plant. It is not correct that the Sanskrit name of the active ingredient is

Ext. Shallaki. The three names of the active ingredient is Kundru and botanical name is Gum Resins of Boswellia Serrata Roxb.

The Respondent did not admit the applicant's spending a sum of ` 1,10,19,044 to launch the product SHALLAKI under the brand name

HIMALAYA PURE HERBS. The certificate issued by the Chartered Accountant regarding the promotional expenditure during the period of

launching is not correct. In as much as the method of arriving at the said figure by bifurcating the expenditure to this product based on the total

number of products covered in the expenditure is not correct. The said expenditure is incurred not only in respect of one product but was incurred in

respect of various other products. The applicant ought to have made a search in the Trade Marks Registry before launching the said product under the

name SHALLAKI. The adoption of the trade mark by the applicant is malafide only to trade upon the goodwill and reputation earned by the

Respondents.

The Respondents therefore prayed that the registration granted as early as 1985 be continued on the Register and the application for rectification

be dismissed with costs.

The rectification application was filed before the Hon'ble High Court of Bombay and transferred to this Appellate Board. The Respondent herein

entered appearance before the High Court and filed their counter statement. But when the matter was transferred to this Appellate Board the same

was received by the Registry of this Board without the counter-statement. Therefore, the Registry called upon the Respondent to file their counter-

statement. On completion of the pleadings, the matter was listed for hearing on 09.06.2010. The counsel for the applicant brought to our notice about

the two counters during the course of arguments. We hence directed the applicant to serve a copy of the counter and reply on the Respondent as

there was a change in the counsel for the Respondent. The matter was therefore treated as part heard and with the consent of both the parties was

listed for hearing on 14.07.2010 at Chennai. Learned Counsel Shri S. Majumdar appeared on behalf applicant and learned Counsel Shri A.A. Mohan

appeared on behalf of the Respondent.

The learned Counsel for the applicant contended that they were aggrieved person and had the locus standi to file the rectification application as the

Respondent had filed a civil suit against the applicant. The counsel relied on the judgment reported in AIR 1971 SC 878 National Bell Co. and gupta

Industrial Corporation v. Metal Goods Mfg. Co. (P) Ltd. and Anr. in this context. The counsel further submitted the Registrar was not made a party to

the proceedings as he was not a necessary party. The counsel submitted that as per the provisions of Section 98 of the Act, the Registrar shall appear

if so directed by the Appellate Board.

The counsel further pointed out that the word SALLAKI has been derived from the Sanskrit word SHALLAKI which describes the herb used in

the product and cannot be used as a trade mark. Being descriptive of the character and quality of the products, the word SALLAKI is incapable of

registration as a trade mark. The counsel relied on Bhavaprakasha of Bhavamisra which shows Boswellia Serrata Sanskrit name is SHALLAKI and

Hindi name is Salai. He further submitted that the Respondent's products were made out of Bosewellia Serrata extract - an ingredient of drug. In this

regard, the counsel relied on Section 13 of the Act. The counsel also relied on the drug licence where the ingredients were mentioned.

The counsel drew our attention to the counter-statement filed by the Respondent and stated that there were contra statements on the adoption of

the trade mark. In one place the Respondent has stated that the word SALLAKI is adopted from the word SHALLAKI one of the numerous names

in Sanskrit of the plant Boswellia Serrata Roxb. On the contrary in the other para the Respondent has stated that the botanical name of the said plant

SALLAKI is Boswellia Serata Roxb and in Hindi known as Salai . SALLAKI is not the only name in Sanskrit or a generic name of the said plant. In

fact in Sanskrit also the said plant Boswellia Serrata is known by various names such as SALLAKI, GAJABHAKSYA, SUVAHA, SURAVI,

RASA, VALLAKI and VAHUSRAVA.

The counsel then relied on the judgment Cadila Laboratories Limited v. Burroughs Wellcome India Ltd. and Anr. wherein the court had held that

the mark CYCLOVIR is not equivalent to the generic word ACYCLOVIR. The applicant also relied on the judgment reported in ACME

Pharmaceuticals v. Torrent Pharmaceuticals Ltd.

The counsel therefore prayed that the impugned trade mark SALLAKI be cancelled from the register and the application for rectification be

allowed.

The learned Counsel for the Respondent contended that the trade mark SALLAKI is registered under No. 385295 in class 5 as of 13.01.1982 and

has been subsisting and is in force as on date. The registration has become conclusive after 28 years. The counsel further submitted that when the

mark was adopted by the Respondent in the year 1982 there was no one using the trade mark or as a generic name.

The counsel further submitted that the product was prepared from a gum resin extracted from the plant Boswellia Serrata which is known as

Salai Guggal"" in Hindi and Kunduru in Sanskrit. The counsel drew our attention to para 8 of the counter-statement where it was clearly mentioned

that the ayurvedic medicine is manufactured out of gum resin extracted from the botanical plant known as Boswellia Serrata which in Hindi is called

as ""Salai Guggal"" and in Sanskrit as Kunduru. Sanskrit is not a language commonly spoken in India or abroad.

The counsel also submitted that there are several names for the plant Boswellia Serrata. In Hindi it is ""Salai Guggal"" in Marathi ""Salai"" in Gujarathi

Salado"" in Kannada ""Madi"" in Tamil ""Parargis abarai"", in Telugu ""pagangis Abarani"" and in English ""Boswellia"". In reply to the applicant's contention

relying on the book Bhavaprakashnighangtu the gum extract is classified as Kapuradiraga whereas Boswelllia Serrrata is classified as Vatadiranga

and therefore there is no direct reference. Therefore, it is seen that the word SALLAKI is not the only name for the herb.

As regards the applicant's contention that tulasi, Karela, neem etc., are generic words and are not registrable, the counsel for the Respondent

submitted that tulasi is a common word for herbal plant used in all languages in India, be it Hindi, Tamil or Telugu whereas the word SALLAKI has

different names. He further submitted that the trade mark SALLAKI is not descriptive of the character and quality of the goods.

The counsel brought to our notice the order dated 29.01.2004 passed by the Hon'ble High Court of Bombay where the learned judge had observed,

the herb Boswellia Serrata is known by 24 names of which one is SALLAKI. Another vital aspect to be noted is that the product is made out of gum

resin of the said herbal plant. The descriptive word for the product is made out of gum resin of the said herbal plant. The descriptive word for the

product should be Kunduru in Sanskrit and not SHALLAKI. Therefore, based on the material produced, one cannot at all say SALLAKI is

descriptive of the product. If that be so, the applicant cannot take the benefit of Section 34 of the Trade Marks Act, 1999. it is also not a bonafide

description of the product..

The counsel also submitted that the web pages cannot be relied upon as they were of no evidentiary value. He relied on the provision of Section 65

B of the Evidence Act. In support of the contention he relied on the judgment reported in 2008 (8) SCC 369-Ponds India Ltd. v. Commissioner of

Trade Tax - it was held that Wikipedia is not a authentic source although the same be looked into for the purpose of gathering information.

The counsel for the Respondent submitted that the applicant was using the 'HIMALAYAS SINGLES' from 1999 and in the year 2002 started

using HIMALAYA PURE HERB SHALLAKI with the word SHALLAKI prominently mentioned. The applicant has not given any reason for such

shifting.

The counsel relied on a number of Judgments in support of his case:

i) 1977 RPC 473 - Court of Appeals - Blue Paraffin Trade Mark - Paraffin in blue colour sold under the trade mark Blue Paraffin was found to be

distinctive and not descriptive and found registrable under the Act.

ii) 1896 (13) RPC 218-House of Lords - Reddaway v. Banham - Trade mark Camel Hair Belting used for Belts made from Camel Hair. The mark

was found distinctive of the Plaintiffs products by virtue of extensive use.

iii) AIR 1980 Del 180 - Registrar of Trade Marks v. Hamdard National Foundation (India)-Trade Mark SAFI used for medicinal preparation for

cleaning blood held to be distinctive of the Respondent's products.

iv) 1997 PTC (17) 386 - Mohan Oil & Soap Mills v. Assistant Registrar of Trade Marks -Trade Mark NEELAM for washing soaps in class 3 was

found to be registrable even though the meaning of the word NEELAM in Tamil was blue.

v) 2005 (30) PTC 1 (SC) - Godfrey Philips India Ltd. v. Girnar Food & Beverages P. Ltd. - The Supreme Court held that descriptive trade mark is

entitled to protection if it has assumed a secondary meaning which identifies it with a particular product.

vi) AIR 1962 Bom 82 - J.L. Mehta and Anr. v. Registrar of Trade Marks -Registration of the trade mark SULEKHA for writing instruments was

upheld though one of the meanings of the word SULEKHA was good writing.

vii) AIR 1965 SC Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories -Navarathna for ayurvedic preparations was held not

to be descriptive but distinctive.

viii) 2002 (24) PTC 355 (Del.) Info Edge (India) Pvt. Ltd. v. Shailesh. Gupta-Domain name Naukri used in job portal was held to be distinctive and not

generic or descriptive.

ix) 1998 (18) PTC 68-Indian Shaving Products Ltd. and Anr. v. Gift Pack and Anr. -Trade mark Ultra filter for batteries was held to be distinctive

and not descriptive.

x) Procter and Gamble C. v. OHIM - European Court of Justice - Trade Mark Babydry for children disposal diapers was held to be registrable.

xi) 1936 (13) RPC 335 - Trade Mark Sheen for sewing cotton was held distinctive.

xii) 1900 (17) 286 - J.C. & J. Field, V. Wagel Syndicate Ld.- Trade mark SAVONOL. The trade mark SAVON in French means soap. There were

other toilet soap manufacturers using the mark SAVON. The court held that the use of the French word as a trade mark amounts to an invented word

and the registration was allowed.

xiii) 1972 (28) RPC 847 Carlsberg Bryggerierne OG Tuborgss Bryggerier De Forene De Bryggerier Aktieselskabet & Carlsberg Scottish Importers

Ltd. V. Tennent Caledonian breweries Limited. -Trade Mark SPECIAL BREW for strong lager beer was allowed registration by virtue of use even

though the Defendants pleaded that the mark was descriptive of the product.

xiv) 2003 (26) PTC 555 Perry Bottling Company Vs.S.S. Soda & Soft Drinks Company and Ors. - Trade mark PERRY'S FRUIT BEER was

registered in the name of the Plaintiffs and was on the register for a long period and to say it was wrongly registered is illegal.

The counsel for the applicant in rejoinder tried to distinguish the Judgments cited by the Respondent. He further submitted that the affidavits filed

by the Respondent are all stereotyped one and cannot be relied. There is no proof of use by the Respondent. The counsel also relied on Section 35 of

the Act which was objected to by the counsel for the Respondent as it was not pleaded by the applicant in the application or was dealt by the

Respondent during the course of arguments.

We have heard and considered the arguments of both the counsel and have gone through all the pleadings and documents.

The issues to be dealt with in the instant application for rectification is that whether the applicant is a person aggrieved and has a locus standi to

maintain an application for rectification and on what grounds the rectification application been filed. The first issue would be to see if the applicant is

an aggrieved person. Persons who are aggrieved are persons who are in some way or other substantially interested in having the mark removed from

the register, or person who would be substantially damaged if the mark remained. Wherever it can be shown that the applicant is in the same trade as

a person who has registered the trade mark, and wherever the trade mark, if remaining on the register would or might limit the legal rights of the

applicant, so that by reason of the existence of the entry on the register he could not lawfully do that which, but for the existence of the mark upon the

register, he could lawfully do, he has a locus standi to be heard as a person aggrieved. In the instant case, the applicant has filed the rectification

application based on the ground that he is an aggrieved person in view of the suit filed against the applicant before the District Court. In such

circumstances we hold that he is a person aggrieved and has the locus to file the rectification application.

The other issue was that regarding the mark being descriptive and not distinctive and was not in accordance with the provisions of the Act. The

impugned trade mark 'SALLAKI' which is registered under No. 385295 in class 5 in respect of medicinal and pharmaceutical preparations date back

to 13.01.1982. The mark has been on the register for more than 28 years. It was the Respondent's contention that in the year 1982 when they

launched the product under the trade mark SALLAKI, there was no such mark available in the market which fact was not disputed by the applicant's

counsel. The Respondent therefore was first to launch joint relief and pain relief preparations under the mark SALLAKI.

Both the counsel relied on the book 'Bhavaprakashnighunta' where it is clearly mentioned that SALLAKI is a Sanskrit name. The plant Boswellia

Serrata has several names. It is called in Hindi as Salai, Salado in Kannada and so on . The Respondent manufactures the said medicinal preparation

with a gum resin extracted from the plant Boswellia Serrata which is known as Salai Guggal in Hindi and Kunduru in Sanskrit. Therefore, the gum

resin extract used in the preparation of ointments and tablets manufactured by the Respondent is not known as SALLAKI. The word SALLAKI is

derived from the Sanskrit word SHALLAKI as it one of the names and has no direct reference to the product. The word SALLAKI is not descriptive

and has no direct reference and therefore the registration is not in contravention of the provisions of Section 9 of the Act.

The applicant has though repeatedly argued that the trade mark SALLAKI is descriptive and cannot be registered has filed an application for

registration of the trade mark SHALLAKI in February, 2003 which fact was suppressed before this Board. The same has been observed in the order

dated 29.01.2004 passed by the Hon'ble High Court of Bombay. The learned Judge had also observed, ""Therefore based on the material produced one

cannot at all say 'SALLAKI' is descriptive of the product. If that be so, the applicant cannot take the benefit of Section 34 of the Act. It is also not a

bonafide description of the product.

We have perused the applicant's drug licence, which clearly states that it is for manufacture of SHALLAKI capsules. The carton also bears the

trade mark 'SHALLAKI' which is prominently seen. The applicants want to monopolise use of the mark SHALLAKI. The Respondent's trade mark

SALLAKI has acquired secondary meaning by virtue of extensive and continuous use since launch in the year 1982. The mark has been on the

register for more than two decades and is still subsisting.

The Respondent has also placed before us invoices to prove their user since 1996. The affidavit of doctors and pharmacists has been filed to show

that the Respondent has been manufacturing and marketing the products under the trade mark SALLAKI since the year 1982. The mark thus having

acquired a secondary meaning and in view of the protection granted under Section 31 of the Act to remain on the register of trade marks.

Under Section 31 of the Act registration of a mark is prima facie evidence of the validity thereof. Under Section 31(2) in all legal proceedings as

aforesaid a registered trade mark shall not be held to be invalid on the ground that it was not registrable trade mark under Section 9 except upon

evidence of distinctiveness and that such evidence was not submitted to the Registrar before registration, if it is proved that the trade mark has been

so used by the registered proprietor or his predecessor in title as to have become distinctive of registration.

The trade mark in our view which was not used either as a generic expression or as a trade mark by any manufacturer or trader in the year 1982

when adopted and used by the Respondent ought not to be cancelled or removed.

The other issue that there are several other manufacturers of SHALLAKI product - the applicant though pleaded has not substantiated by proper

evidence. The Apex Court in Corn Products case AIR 1960 SC 142) has held that when a person derives assistance from the presence of a number

of marks having one or more common features, which occurs in his mark also, he has to prove that these marks are in use in the market.

The trade mark SALLAKI has acquired a secondary meaning and is distinctive of medicinal preparations manufactured by the Respondent. The

word SALLAKI is derived from the Sanskrit word SHALLAKI. The drug SALLAKI is manufactured from gum resin extract known as Kunduru or

Salai Guggal. Therefore, the mark is not directly descriptive of the product.

In view of the reasons stated above, we are of the opinion that the applicant has not made out a case for removal / cancellation of the trade mark

SALLAKI from the Register of Trade Marks. That apart, the Respondents trade mark has been on the register for 20 years as on the date of

application for rectification which in our considered view ought not to be cancelled. We, therefore, dismiss the rectification application with no order as

to costs. The M.P. Nos. 116/07, 220/08, 22/10 and 99/10 are also allowed with consent of both the parties.