Three-N-Products Private Limited vs Amalco Herbal Products

Z.S. Negi, J

This is an application for removal of the trade mark, 'Ayurgreen' under No. 1308475 in class 05 registered in the name of the respondent, from the

register or rectification of the register under Section 47/57/125 of the Trade Marks Act, 1999 (hereinafter referred to as the Act).

It is stated that M/s. Three-N-Products, applicant herein, was initially a partnership firm which converted into a Private Limited company with

effect from 4.12.1991 and all the three partners became the promoters and directors thereof. The reference to the applicants hereinafter may be

construed as including the aforementioned partnership firm as predecessor of the applicants. The applicants are carrying on an old and established

business of manufacturing and marketing of bleaching preparations, cleansing, soaps, cosmetics, hair lotions, essential oils, scouring, kumkum, nail

polish, shampoo, agarbatti and dhoop, heena, hair wash, mint water, triphala water, rose water, neem water, face pack kit, tea and various other goods

for the last many years.

The applicants claim that they in the year 1984 have honestly and bonafidely conceived, invented and adopted the trade mark AYUR, in respect of

bleaching preparations, cleansing, soaps of all kinds, cosmetics namely creams milks, lotions, gels, face powder, perfumes, all non-medicated

preparations, toiletries, detergents, bath oils, skin moisturizers, body lotions, cologne, anti-perspirants, deodorants, talc, shower gel, tooth paste, hair

lotions, cold creams, essential oils, scouring and abrasive preparations, bindi, sindoor, kumkum, nail polish, shampoos, sun care preparations, kajal,

make-up preparations, heena and hair wash, etc. The applicants are the proprietors of the distinctive trade mark which has a global reputation and the

trade marks have been continuously, openly, extensively and exclusively used by the applicants since the year 1984. Due to the superior quality and

the standard maintained, the applicants have built up an enviable goodwill and reputation by use of the marks in respect of the above mentioned goods.

By virtue of continuous and extensive use, coupled with large scale advertisement and publicity thereof, the said trade mark has become well known

mark as defined under the Act and is exclusively associated with the said goods of the applicants' manufacture/merchandise.

It is also stated that he applicants' activities include manufacture and sale of a vast variety of goods including providing of various kinds of services

as well. They are also engaged in providing treatment of neuro muscular disorders, hemiplegia, chronis rheumatic disorders, and neurological disorders

and for rejuvenation; well known for Pach karma treatment ; running an institute under the name ""aanb"" Ayur academy of natural beauty, which

provide job oriented courses such as education on beauty courses relating to skin care, hair care, body care and health care and also nail care. A large

number of students have passed out from this institute and have opened their own beauty parlors. The applicants claim that they are the registered

proprietors of their trade mark AYUR with the device in various classes within India and in many foreign countries as enumerated in paragraphs H

and J of the Statement of Case and they have been protecting their rights by filing suits and taking other actions against the pirates from time to time.

The Hon'ble High Court of Delhi in a recent suit held that the trade mark AYUR is an invented word capable of exclusive appropriation by a party

without proof of its having acquired secondary significance.

It is averred that the applicants have filed a suit for infringement and passing off against the respondent in the Court of District Judge at Ernakulam

(Kerala) and also moved application for interim stay restraining the respondent from using the trade mark AYUR and the High Court granted the stay.

From the reply filed by the respondent to stay application, the applicants came to know that the respondent is registered proprietor of trade mark

AYURGREEN under No. 1308475 in class 05 and aggrieved by such registration, the applicants have sought removal of the said trade mark from the

register on the following grounds:

(a) That the impugned trade mark neither on the date of the application nor on the date of registration is/was distinctive of the goods of the registered

proprietor under Section 9 of the Act as much as, the trade mark AYUR was never used by the registered proprietor in respect of products falling

under class 05.

(b) That the word AYURGREEN has been copied from the registered trade mark AYUR of the applicant and the description of the goods given by

the registered proprietor is the same for which the applicant has obtained registration and the registration granted to the respondent is not only in

contravention of Section 11 but also sections 9 and 18(1) of the Act as well.

(c) That the entry of impugned trade mark on the Register was made without sufficient cause and wrongly remaining on the Register of Trade Marks

and its existence affects the purity of the Register.

(d) That the period of five years and three months have passed since the date of registration of the impugned registration that the impugned mark has

not been used in respect of all the goods for which it has been registered.

The respondent filed the counter-statement denying the material averments made in the rectification application and stating that AYURGREEN is

the Ayurvedic preparation consisting of various ayurvedic ingredients and prepared after resuming to various renowned test books of ayurveda. The

respondent derived the name of its product 'Ayurgreen' from the word 'Ayur' suggesting that it is an Ayurvedic product. The applicant's mark is an

invented one and the applicant's use of Ayur has nothing to do with Ayurveda because it has short pronunciation of 'A' in Hindi and prolonged

pronunciation of 'U', whereas the word 'Ayur' relating to Ayurveda has the prolonged pronunciation of 'A' and short pronunciation of 'U' in Hindi.

There is no deceptive similarity between the two marks because of difference of style, appearance, get up, scheme, design and colour, etc. The mark

of the respondent is the generic word used in Sanskrit and various other Indian languages, which has definite recognized well known meaning of 'life'

in the all those languages I.e. in Hindi as well as other vernacular languages and it is not possible to get exclusive right over the generic word 'Ayur'.

Moreover, the prefix 'Ayur' used in respondent's trade mark has nothing to do with the word 'Ayur' used by the applicant. The product of respondent

is not an ordinary tooth powder, it is an ayurvedic tooth powder described as an ayurvedic medicine for which the respondent has obtained a drug

licence, whereas the Herbal Body care of the applicant is no where described as ayurvedic or herbal medicine and hence there is nothing wrong in

respondent getting the trade mark 'Aurgreen' registered under class 05 as a pharmaceutical product. The grounds stated under A to N of the

application for removal of trade mark are false and incorrect and the application is filed suppressing the material facts and with distorted versions by

the applicant. It is stated that the trade mark is neither impugned nor wrongly registered. The allegation of non-use of trade mark is false as the

respondent is using the trade mark by way of manufacturing and distributing different types of goods such as tooth powder, rasnathi powder, thali

powder, etc. and the onus of proving non-use is on the applicant.

The rectification application came up before us for hearing on 25.6.2008, when Shri K.C. Kailasam, Advocate appeared on behalf of the applicant

and Shri E.D. Zacharias, Advocate appeared on behalf of the respondent.

Learned Counsel Shri Kailasam submitted that the applicant is the person aggrieved on account of entry of impugned mark made in the register of

trade marks without any sufficient cause and such entry has been wrongly made and wrongly remaining on the register. It was further submitted that

the registration of the impugned trade mark and its continuance thereof in the register is an obstruction to the continuance of business of the applicant.

The applicant has also filed a suit against the respondent and the Court has granted ex-parte interim injunction order against the respondent.

Learned Counsel for the applicant contended that the impugned trade mark neither on the date of filing of this application nor on the date of

registration is/was distinctive of the goods of the respondent under Section 9 of the Act in as much as, the trade mark AYUR was never used by the

respondent in respect of goods falling under class 05. The respondent itself admitted in paragraph 1 of the counter-statement that the word Ayur used

by the respondent is a generic word used in Hindi, Sanskrit, Malayalam and other Indian languages and the word has definite recognized well known

meaning of 'life'. Having this in view, the mark ought not to have been registered unless shown that it had acquired distinctive character or secondary

meaning by user. Learned Counsel citing the decision of Delhi High Court in Indian Shaving Products Ltd. and Anr. v. Gift Pack and Anr. 1998 PTC

(18) submitted to say that in that case the Court held that it is a well recognised principle of law that a trader or a businessman can acquire exclusive

right to use a particular word with a dictionary meaning as a trade mark if it is shown to the satisfaction of the Court that it has acquired a secondary

meaning or a distinctive character with the constant user for a considerable period of time. Though the word Ayur is generic but the Ayur of the

applicant has acquired secondary significance as has been observed in the case of Three-N-Products Private Ltd. v. Karnataka Soaps & Detergents

Limited and Anr. 2006(4) CHN. In the instant case there was no user claimed before the filing of application for registration and besides this, there

was applicants' trade mark registered in their name. Therefore, the mark was not distinctive or capable of distinguishing the goods of the respondent

from that of goods of the applicant.

It was contended by the learned Counsel that the impugned mark Ayurgreen is identical to and similar with that of the trade mark or copyright of

the applicant and the respondent has deceptively used the trade mark of the applicant and took advantage of the reputation and goodwill of the

applicants' well known AYUR trade mark. He drew our attention to various judgments of different High Courts as well as of the Apex Court, where

the Courts have taken a view that if the owner of the registered trade mark already on record had built up a good reputation and a goodwill in respect

of its business, the same trade mark cannot be allowed to be used by any other, even in respect of different goods. The first syllable or first part of the

trade is important and in the case on hand the applicant's mark is AYUR and the respondents mark is AYURGREEN. The principle laid down by the

Supreme Court to determine the question when a trade mark is deceptively similar to another is that the broad and essential features of the two are to

be considered and by applying this principle the two marks deceptively similar. The High Court of Delhi has held in Ayurherbs Pharmaceuticals Pvt.

Ltd. v. Three-N-Products Pvt. Ltd, held that the suffix, namely, ""Ayurherb Pharmaceuticals Pvt. Ltd. is likely to cause confusion in the mind of

ordinary purchaser. The applicant's mark is a reputed and well-known mark and Section 11 hits the impugned registration. Learned Counsel further

contended that the respondent is not the proprietor of the impugned trade mark as the word Ayur prefixed to the impugned mark is likely to cause

confusion and the respondent is not a bonafide adopter and user of the mark Ayurgreen but copied the mark of the applicant after noticing its

popularity. The applicant has made four applications for registration in class 05. Learned Counsel submitted that since the applicant is registered

proprietor of the mark, therefore, any change of style, appearance, get up, scheme, design and colour claimed by the respondent will not make any

difference. The respondent has not produced a single document to show the bonafide use of the impugned mark in respect of goods mentioned in the

registration certificate in class 05 and the applicant disputes the classification shown in the said certificate. It was submitted that the contents of

paragraph 16 of the counter-statement are wrong and denied including the statement that at the time of commencement of the business, the

respondent was not aware of the applicants' well-known trade mark and submitted that the respondent has deliberately adopted the trade mark

Ayurgreen to cash upon goodwill and reputation of the applicant's well-known trade mark Ayur.

Learned Counsel submitted that as he has already shown that at the date of application for impugned registration, the mark was not registrable

under sections 9, 11 and 18(1) of the Act and the same remains so unregistrable even on the date of making of the present application, hence the entry

of the impugned mark is made in the register without sufficient cause and wrongly remaining on the register. He further submitted that the impugned

registration is in the wrong class as the certificate of registration is for goods in class 05 but the documents relate for goods in class 03, even the tooth

powder/paste is in class 03 as was found on search on website WWW.IPO.GOV.U.K that the goods in class 03 are: Medical toothpastes, Tooth Care

preparations, Tooth Clean preparations, Tooth powders, Toothpaste for smokers and Toothpastes; and goods in class 05 are: Dental preparations for

the relief of toothaches, Foam pellets for use within tooth cavities, Glass ionomers for use as a base for tooth restoration, Material for making gypsum

models for the manufacture of tooth prosthesis, Material for tooth bridges, Material for tooth crowns, Material for tooth fillings, Tooth conditions and

Tooth enamel etching preparations. The registration in the wrong class is observed to be an entry made in the register without sufficient cause and is

an entry wrongly remaining on the register.

Learned Counsel contended that the impugned trade mark was registered without any bonafide intention on the part of the respondent that it

should be used in relation to those goods by it and that up to a date three months before the date of application, a continuous period of five years from

the date on which the trade mark is actually entered in the register or longer had elapsed during which there was no bona fide use of the trade mark in

relation to those goods by any proprietor thereof for the time being. Supplementing his contention, the counsel submitted that the respondent has not

used the impugned trade mark in manufacturing, selling the products in respect of which trade mark registration has been obtained or propagated the

mark for the last several years by the respondent and it has not filed an iota of document to prove its averment that it has been using the mark,

manufacturing and selling the products under the said name, propagating the same continuously, extensively and exclusively for the last several years.

There is no invoice or bill or voucher produced to show or establish the use of the mark in relation to goods for which registration was obtained.

Learned Counsel lastly submitted that there has not been any circumstances specified in sub-sections (2) and (3) of Section 47 of the Act which can

be raised as a defence for non-use of the trade mark by the respondent.

Learned Counsel for respondent on the other hand submitted that the applicant is not a person aggrieved to file the rectification application as the

marks are different and the registration of respondent's mark is not impugned and not an obstruction to applicant's business. The entry of respondent's

mark on the register was neither made without sufficient cause nor is the same wrongly remaining on the register of trade marks.

Learned Counsel for the respondent submitted that the respondent has been selling a tooth powder, thali powder, etc. products manufactured by

the name Ayurgreen for the last more than 20 years and has acquired definite and distinctive identification. The name of the product has been derived

from the word Ayur suggesting that it is an ayurvedic product. The respondent, which has been using its trade mark Ayurgreen for the family business

for manufacturing and selling its products decided to register the said trade mark for the family business and accordingly applied for registration in

class 05 and the Registrar of Trade Marks, had granted the registration on 20.3.2006. The allegation that the trade mark Ayurgreen has been granted

in contravention of the provisions of sections 9, 11 and 18(1) of the Act is false and incorrect. Learned Counsel further submitted that the respondent

is the first adopter, originator, true owner and lawful proprietor of the trade mark Ayurgreen and at the time of commencement of its business was not

aware of that the applicant was using the trade mark and it has any registration with the name Ayur and the respondent had no reason to believe so

and as such it has used its trade name Ayurgreen bonafidely. Learned Counsel also submitted that the respondent's mark is a totally different,

separate and distinct visually, phonetically and structurally from the mark of the applicant. The colours of writing and the style and getup of the two

marks are totally different and distinct and there is no likelihood of confusion whatsoever.

Learned Counsel lastly submitted that the respondent has been using the trade mark by way of manufacturing goods of different types such as

tooth powder, rasnathi powder, thali powder, etc. and distributing them continuously, extensively and exclusively for the last several years and the

allegation of non-use of trade mark is false and incorrect. The onus of proving non-use of trade mark during the period specified in the statute is on the

applicant which the applicant has failed to prove. Contrary to the allegation, the respondent has manufactured large quantity of goods in that name and

substantial portion is remaining with it and a large number is in the market.

After hearing the arguments of both the parties, the first question required to be considered is whether the applicant is the 'person aggrieved' to file

the present rectification application. The expression 'aggrieved person' has received liberal construction from the Courts and includes rivals in the

same trade who are aggrieved by the entry of rival's mark in the register of trade marks or persons who are in some way or the other substantially

interested in having the mark removed from the register or persons who would be substantially damaged if the mark remained on the register. In re

Powell's Tm. (1894) 11 R.P.C. 4, HL at p. 4 Lord Herschell said: ""The first question raised is whether the Respondents were 'Persons aggrieved'....

My Lords, I should be very unwilling unduly to limit the construction to be placed upon these words; because, although they were no doubt interested

to prevent officious interference by those who had no interest at all in the Register being correct, and to exclude a mere be unduly limited, in as much

as it is a public mischief that there should remain upon the Register a mark which ought not to be there, and by which many persons may be affected,

who, nevertheless, would not be willing to enter upon the risk and expense of litigation. Wherever it can be shown, as here, that the Applicant is in the

same trade as the 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 awfully do that which, but for the existence of

the mark upon the Register, he could lawfully do, it appears to me he has a locus standi to be heard as a person aggrieved."" And, Lord Watson said:

In my opinion, any trader is, in the sense of the statute, 'aggrieved' whenever the registration of a particular trade mark operates in restraint of what

would otherwise have been his legal rights. Whatever benefit is gained by the registration must entail a corresponding disadvantage upon a trader who

might possibly have had occasion to use the mark in the course of his business. It is implied, of course, that the person aggrieved must manufacture or

deal in the same class of goods to which the registered mark applies, and that there shall be a reasonable possibility of his finding occasion to use it.

But the fact that the trader deals in the same class of goods, and could use it, is prima facie, sufficient evidence of his being aggrieved, which can only

be displaced by the person who registered the mark, upon-whom the onus lies, showing that there is no reasonable probability that the objector would

have used it, although he were free to do so."" In the present case, the respondent by obtaining registration of deceptively similar trade mark as that of

the applicants' reputed and distinct trade mark and if the respondent's mark remaining on the register would, limit the legal rights of the applicant, so

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

register, the applicants could lawfully do, the applicant has a locus standi to be heard as a person aggrieved. The respondent's registration is a restraint

to the business of the applicants. The applicants, by applying the above principles, are prima faciethe person aggrieved.

Now we would consider the issue of registrability of the impugned trade mark. In the admission of the respondent the word Ayur is a generic

word taken from the Sanskrit which has in Sanskrit and other vernacular languages has a definite recognised well known meaning 'life'. According to

'A Sanskrit-English Dictionary, etymologically and philologically arranged with special reference to cognate indo-European languages', the meaning,

amongst others, of the word 'Ayur' is 'giving life, giving longevity'. It is notable that a dictionary word cannot be allowed to be registered as trade mark

unless it is shown to the satisfaction of the Registrar or the Appellate Board that by long use it has acquired a distinctive character and this principle is

fortified by the High Court of Delhi in Indian Shaving Products Ltd. and Anr. (supra), wherein it is observed as under:

It is a well recognized principle of law that a trader or a businessman can acquire exclusive rights to use a particular word with a dictionary meaning

as a trade mark if it is shown to the satisfaction of the Court that it has acquired a secondary meaning or a distinctive character with the constant user

for a considerable period of time. The user of the impugned word must be to such an extent that it has last its primary meaning and has acquired a

distinctive character. The moment the same is used it must remind the consumer of the goods of the plaintiffs. It has become so popular with the

public by way of goodwill or a reputation that the moment it is used and referred to a picture emerges in the mind of the consumer of the article in

question which is being sold under the said trade name. Thus the only qualification attached to the use of a descriptive word as a trade mark is that it

must have been associated and used in connection with the goods of the plaintiffs for such a considerable period that it has come to acquire an

altogether different meaning other than the one which it conveys in the language.

In the case on hand 'Ayur' and 'green' with dictionary meanings cannot be registered unless considerable long use is to the extent it acquires a

secondary meaning or distinctive character. The respondent claims 20 years as user of the mark Ayurgreen but there is no documentary proof on the

record. Exhibit B2 to B4 are copies of advertisement in Malayalam but no translation thereof is on record, so we could not make out for which

products the advertisements relate to, and B5 to B7 are certificates of telecast during May, 2006 pertaining to Ayurgreen tooth powder. There is no

invoice, voucher, bill or sales figure showing sale of the products in respect of which the impugned registration has been obtained. Tooth power is

included in class 03 for which separate application No 1308473 is pending for registration. The documents B5 to B7 do not pertain to products or

goods specified in the impugned registration certificate. It can be unhesitatingly concluded that there is no user worth a name and claim of 20 years

use is a bald and baseless claim and the mark is devoid of any distinctive character. For the purpose of determining whether a mark is similar to

another, the marks are not to be placed side by side but the overall similarity be taken into consideration. The High Court of Delhi in Kedar Nath, v.

Monga Perfumery & Flour Mills relying the principle laid down by the Supreme Court made the following observation:

The Supreme Court in Parle Products 1972 SC 1359 has laid down the test to determine the question when a trade mark is deceptively similar to

another. Their Lordships observed at page 1362:

It is therefore clear that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the

two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of

such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to

the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him."" A little later it was observed:

After all, an ordinary purchaser is not gifted with the powers of observation of a Sherlock Holmes.

The Supreme Court relied on the following passage in Karly's Law of Trade Marks and Trade Names:

Two marks when placed side by side, may exhibit many and various differences, yet the main idea left on the mind by both may be the same. A

person acquainted with one mark, and not having the two side by side for comparison might well be deceived if the goods were allowed to be

impressed with the second mark in to a belief that he was dealing with goods which bore the same mark as that with which he was acquainted. Thus,

for example, a mark may represent a game of football; another mark may show players in a different dress and in very different positions and yet the

idea conveyed by each might be simply a game of football. It would be too much to expect that persons dealing with trade marked goods, and relying

as they frequently do upon marks should be able to remember the exact detail of the marks upon the goods with which they are in the habit of dealing.

Marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole. Moreover,

variations in detail might well be supposed by customers to have been made by the owners of the trade mark they are already acquainted with for

reasons of their own.

In Ruston & Hornby Ltd. v. Z. Engineering Co. it was laid down:

We are accordingly of the opinion that this appeal should be allowed and the appellant should be granted a decree restraining the respondent by a

permanent injunction from infringing the plaintiff's trade mark ""RUSTON"" and from using it in connection with the engines, machinery and accessories

manufactured and sold by it under the trade mark of RUSTAM"" or 'RUSTAM INDIA"". The appellant is also entitled to an injunction on restraining

the respondent and its agents from selling or advertising for sale of engines, machinery or accessories under the name of 'RUSTAM' or ""RUSTAM

INDIA"". The appellant is also granted a decree for nominal damages to the extent of Rs. 100. The appellant is further entitled to an order calling upon

the respondent to deliver to the appellant price-lists, bills, invoices and other advertising material bearing the mark ""RUTAM"" or ""RUSTAM INDIA"".

The appeal is allowed with costs to the above extent.

In Corn Products Refining Co. v. Shangrila Food Products Ltd. it was held that Trade Mark ""Gluvita"" used with respect to biscuits and trade mark

Glucovita"" used with respect to glucose were likely to cause confusion. Similar view was taken in Parle Products v. J.P. & Co., Mysore 1972 SC

1359, wherein it was held that ""Gluco Biscuits"" and ""Glucose Biscuits"" are deceptively similar and create confusion.

In the two marks Ayur and Ayurgreen, the word Ayur is common and prominent in both the marks. There are number of decisions of the High Courts

as well as of the Apex Court holding that mere prefix or suffix was not likely to catch the eye of an ordinary purchaser. In Kedar Nath's case (supra)

the facts were that defendant's impugned carton was closely similar or identical (except the prefix ""vijay"" in small type) with the registered trade mark

of the plaintiff's Sudarshan Dhoop. It was held that the impugned trade mark clearly infringed plaintiff's registered trade mark and that the prefix

vijay"" was not likely to catch the eye of an ordinary purchaser who would easily be deceived into thinking that he was buying plaintiff's product. On

the ratio decidendi of this, the suffix of green will not catch the eye of an ordinary purchaser and would easily be deceived. The law also provides that

where a reputed trade mark is already registered in the name of a person, similar trade mark cannot be permitted to be used by another person. In

S.K. Patel v. Deputy Registrar of Trade Marks and Ors. this Appellate Board has observed thus: ""Where a registered trade mark has got the

reputation and goodwill, such trade marks cannot be permitted to be used by another person, as the same would cause confusion in the mind of the

general public that the goods being manufactured with the identical trade mark has some connection with the registered proprietor of that trade mark.

This confusion cannot be totally ruled out. Hence, the order of the Registrar of Trade Marks cannot be sustained. Accordingly the appeal is allowed.

The trade mark Ayur of the applicant has been held to have acquired secondary significance. In Three-N-Products Pvt. Ltd. v. Yashwant and Ors.

2001 (2) CTMR 514 (Delhi), the learned Judge relying upon the case of Three-N-Products Pvt. Ltd. v. General Store and Ors. 2000 PTC 489,

observed thus : ""Learned single Judge was of the view that there is no likelihood of any confusion or deception being created in the mind of the

purchaser. 'Ayur' written in English can be pronunciated as (sic) as well as (sic) unless metrical prolongations, intervals are also specified. If 'Ayur'

written in English is read as (sic) in Hindi it could be argued that it is a generic or descriptive word denoting something relating to Ayurveda. But this

does not apply to (sic) in Hindi. No customer having an elementary knowledge of Hindi will relate the word (sic) to Ayurveda. In the present case, the

impugned trade mark is (sic) in Hindi and not 'Ayur' written in English which was the subject mater of comment in the case cited by learned Counsel

for the defendant. Therefore the said decision is no authority for the proposition that (sic) is not an invented word. For the reasons already given, I am

of the view that (sic) is a invented word capable of exclusive appropriation by a party without proof of its having acquired secondary significance.

Similarly in the case of Indian Shaving Products Ltd. and Anr. (supra) the Court did not accept the plea that the two products are dissimilar in their

colour Scheme and getup and dress material and the Court observed as under:

The plaintiff admittedly are not objecting to the colour scheme and get up of the jacket of the goods of the defendants. Their case is that the

defendants have usurped their trade mark and as such they are likely to filch their trade and cause loss and damage to their reputation as well as to

their business. Thus the defence put forward by the defendants that the two products are dissimilar in their colour scheme and get up and dress

material does not come to their rescue. Had the case of the plaintiff been that the trade mark used by the defendant is deceptively similar to that of

the plaintiffs in that eventually the defendants could have shown that their goods are not likely to be treated and taken as the goods of the plaintiffs on

account of their dissimilarity and distinctive features in colour scheme and get up and dress material.

By simply suffixing green to the word Ayur to the word green it becomes distinct to negate the likelihood of causing confusion or deception in the

minds of people is a myth. The prefix Ayur to the mark of respondent and Ayur mark of the applicant is visually identical and phonetically gives

closely similar sound. In view of the above, we are of the considered opinion that the impugned registration is in contravention of sections 9, 11 and 18

of the Act.

When we have found above that the impugned registration is not qualified to be registered, it is unnecessary to go to the other objections raised by

the applicants. The mark is liable to be expunged on this finding alone.

We allow the rectification application and direct the Registrar to expunge the trade mark Ayurgreen under No. 1308475 in class 05 from the Register

of Trade Marks. Let a copy of this order be forwarded to the Registrar of Trade Marks for compliance. There shall be no order as to costs.