Z.S. Negi, Chairman - (1.) 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).
(2.) 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.
(3.) 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.;