KANWAR AYURVEDIC PHARMACY KANPUR Vs. REGISTRAR OF TRADE MARKS

JUDGEMENT

(1.) Messrs Kanwar Ayurvedic Pharmacy, Kanpur, a partnership concern through its partners Abinash Chandra Singh, Thakar Dev Dutt Singh and Thakar Ram Bharoaey Singh applied to the Registrar of Trade Marks under the Trade Marks Act of 1940 (hereinafter referred to as the Act) in three cases Nos. 156267, 156263 and 170741 on 12th November, 1952, for registration of Trade mark in class 5 in respect of medicines. The first applicatlon No. 156267 relates to a label on the centre of which appears most prominently the words "Vedana Nlgrah Ras" in Devnagri characters. On the right hand corner of this lable is the picture of a woman. The name of. the petitioner-company also appears on this label. The second application No. 156268 is in relation to the words "Vedana Ni?rah Ras" in Roman character. The third application relates to two labels, one in Devnagri character and the other in Roman character. On the centre of the labels the words "Vedana Nigrah Ras" appear prominently. The device of pistol and mortar is depicted on the top left hand side of the labels. The name of the petitioner-company also is inscribed in the labels.

(2.) The Trade Marks Registry after preliminary examination of the three applications objected to the registraion of the trade marks on the ground that the expression "Vedana Nigrah Ras" which in fact formed the core of the Trade Marks was a descriptive term. The applications were made to lead preliminary evidence in order to establish a prima fade case which was done. The Trade Marks Registry as required under the Rules ordered that the three applications should be advertised before acceptance. The registration of the trade marks was to be confined to an area covered by the State of Uttar Pradesh and Bihar. It appears that the registration of the trade marks was not opposed by an outsider.

(3.) The Assistant Registrar of Trade Marks before whom three aplications came up for final disposal, by a common order dated 15th 0ctober, 1963, dismissed them mainly on the grounds that the most prominent feature of the trade marks sought to be registered was the expression "Vedana Nigrah Ras" which in ordinary parlance meant that the Ayurvedic medicine to which these words applied was for restraining or suppressing; pain and, consequently, had a direct reference to the character or quality of goods and failed to satisfy the requirements of section 9 (1) (d) of the Act and that the mere fact that the applicants had been using these trade marks since 1936 and that they had successfully fought cases against persons who used these trade marks did not matter much. The applicants felt aggrieved from the above order and filed three separate appeals Nos. 28.D and 29-D and 30-D of 1964 which shall be disposed of by this common judgment.