BEFORE THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

(CIVIL WRIT JURISDICTION)

Writ Petition (Civil) NO. OF 2019

IN THE MATTER OF:

Geetanjali Arora
Ath Ayurdhamah,
156-A, New Colony,
Gurgaon Haryana-122001
……………….Petitioner

Versus

1. Deputy Registrar of Trademarks

Trademark Registry, New Delhi

2. Three - N - Products Ltd.,

2/12, West Patel Nagar,
New Delhi-110008
……………..Respondents

INDEX

SI Particulars Page
No. No.
1. Notice of Motion

2. Urgent Application

3. Memo of Parties

4. Synopsis with List of Dates

5. Writ Petition with Affidavit

6. Annexure P-1: True copy of

Trademark Certificate issued by the
…..
 7. Annexure P-2: True copy of the
publication made in the official
gazette.

8. Annexure P-3: True copy of the

Certificate issued to the petitioner
for the mark “Ath Ayurdhamah”.

9.

. Vakalatnama

FILED BY:
DATED:
PLACE: NEW DELHI ANUPAMA SHARMA
(Counsel for the Petitioner)
109, LGF, Golf Apartments,
Sujan Singh Park, Maharishi Ramann Marg,
New Delhi- 110003
BEFORE THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

(CIVIL WRIT JURISDICTION)

Writ Petition (Civil) NO. OF 2019

IN THE MATTER OF:

Geetanjali Arora
Ath Ayurdhamah,
156-A, New Colony,
Gurgaon Haryana-122001
……………….Petitioner

Versus

1. Deputy Registrar of Trademarks

Trademark Registry, New Delhi

2. Three – N – Products Ltd.,

2/12, West Patel Nagar,
New Delhi-110008
……………..Respondents

NOTICE OF MOTION

Sir,
The enclosed writ petition in the above mentioned matter is
being filed on behalf of the Petitioner and is likely to be listed
on______ or any further date thereafter. Please take notice
accordingly.

FILED BY:
DATED:
PLACE: NEW DELHI ANUPAMA SHARMA
(Counsel for the Petitioner)
109, LGF, Golf Apartments,
 Sujan Singh Park, Maharishi Ramann Marg,
New Delhi- 110003

BEFORE THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

(CIVIL WRIT JURISDICTION)

Writ Petition (Civil) NO. OF 2019

IN THE MATTER OF:

Geetanjali Arora
Ath Ayurdhamah,
156-A, New Colony,
Gurgaon Haryana-122001
……………….Petitioner
Versus

1. Deputy Registrar of Trademarks

Trademark Registry, New Delhi

2. Three - N - Products Ltd.,

2/12, West Patel Nagar,
New Delhi-110008
……………..Respondents

URGENT APPLICATION
To,
The Registrar,
High Court of Delhi,
New Delhi
Sir,
Kindly treat the accompanying application as urgent in
accordance with the Delhi High Court Rules & Orders. The
ground of urgency is as follows:
“The petitioner is
hence, the urgency.”
 FILED BY:
DATED:
PLACE: NEW DELHI ANUPAMA SHARMA
(Counsel for the Petitioner)
109, LGF, Golf Apartments,
Sujan Singh Park, Maharishi Ramann Marg,
New Delhi- 110003

SYNOPSIS

That by the present writ petition, the petitioner begs to impugn the order

dated 29th November 2018, passed by Respondent no. 1, i.e. Intellectual

Property Appellate Authority and all consequent actions pursuant thereto.

The Petitioner is a registered proprietor of the trademark “Ath Ayurdhamah”

registered under class 42 for providing ayurvedic treatment services,

ayurvedic clinic and research centre & services and consultancy. The

trademark "Ath Ayurdhamah" is used for an Ayurvedic Doctors Clinic and

Panchakarma Centre. The said clinic is run by authorized and recognized

M.D. Doctors, i.e, by Dr. Geetanjali Arora, the registered proprietor and her

husband Dr. Parrneshwar Arora. Under the said mark the Petitioner

prescribes and manufactures ayurvedic medicines for their patients. The

Centre focuses on Well-being of an individual through Ayurvedic concepts,

and therefore the word mark "Ath Ayurdhama" is a relevant mark for the

said services provided by the Petitioner, which are in no manner similar to

the Respondent's word mark "Ayur", and is even phonetically different from

the Respondents's mark.

It is further submitted that, a simple search on the internet shows that the

term "Ayur" is a Sanskrit language word meaning "life" or "vital power". It is

one part of the Sanskrit compound of terms that make up the word

Ayurveda, which means "life" knowledge". Ayurvedic medicine is a life-giving

system of Indian traditional medicine. Thus, it is clear that the word Ayur is

a generic word and every person has equal right to use it. That, the word
Ayur is a generic word, has a dictionary meaning, and the Respondent No. 2

has not invented the word. Thus the Respondent No. 2 has no right over the

word "Ayur", and That, the Petitioner herein has adopted the word "AYUR

from Ayurved as it is an Ayurvedic Doctors Clinic, and not from the

Respondents's brand name. That, use of the word Ayur cannot be a sole

property of any person, body, organization, company etc. It is further

submitted that, the mark of the Petitioner is not in contravention of section

9, 11 or 18(1) of the Trademark Act, 1999, since the mark of the

Respondent No. 2 is distinctive of the services provided by the Petitioner as

specifically being a doctor's clinic and Panchakarma Centre. The Petitioner

has a completely different class of consumers as compared to the

Respondent, due to the kind of services provided by the Petitioner.

That, the Petitioner has a flourishing practice as an Ayurvedic Doctor, and

the Respondent herein is not a Doctor and is not identified with any

Ayurvedic treatments as such. The mark “Ath Ayurdhamah” has been

adopted by the Petitioner in an honest and bonafide manner.

LIST of DATES

List of Dates Particulars

The Petitioner applied for the Trademark

27.02.2008 as “Ath Ayurdhamah” under class 42 for

providing ayurvedic treatment services,

ayurvedic clinic and research centre &

services and consultancy whose

trademark application No. is 1658391

and is annexed herein as Annexure P-

1. (Page No. to )

16.10.2009 The petitioner’s said mark

was published in the Official Gazette in

Journal No. : 1426-0 and is annexed herein

 as Annexure P-2. (Page No.

to )

31.03.2010 The Certificate was granted to the

petitioner for the mark “Ath

Ayurdhamah”. Its certificate No. 868619,

is annexed herein as Annexure P-3.

(Page No. to )

BEFORE THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

(CIVIL WRIT JURISDICTION)

Writ Petition (Civil) NO. OF 2019

IN THE MATTER OF:

Geetanjali Arora
Ath Ayurdhamah,
156-A, New Colony,
Gurgaon Haryana-122001
……………….Petitioner

Versus

1. Deputy Registrar of Trademarks

Trademark Registry, New Delhi

2. Three – N – Products Ltd.,

2/12, West Patel Nagar,
New Delhi-110008 ……………..Respondents
BEFORE THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

(CIVIL WRIT JURISDICTION)

Writ Petition (Civil) NO. OF 2019

IN THE MATTER OF:

Geetanjali Arora
Ath Ayurdhamah,
156-A, New Colony,
Gurgaon Haryana-122001
……………….Petitioner

Versus

3. Deputy Registrar of Trademarks

Trademark Registry, New Delhi

4. Three – N – Products Ltd.,

2/12, West Patel Nagar,
New Delhi-110008
……………..Respondents

PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA

SEEKING APPROPRIATE WRIT, ORDER OR DIRECTION FOR
QUASHING OF THE ORDER PASSED BY THE INTELLECTUAL
PROPERTY APPELLATE TRIBUNAL.

THE HON’BLE CHIEF JUSTICE

AND THE OTHER HON’BLE
JUSTICES OF THE HON’BLE HIGH
COURT OF DELHI, AT NEW DELHI.

THE HUMBLE PETITION OF THE PETITIONERS ABOVE NAMED:

MOST RESPECTFULLY SHOWETH:
1. The Petitioners are filing the present Writ Petition

under Article 226 of the Constitution of India seeking

an appropriate writ, order or direction for quashing

the Order/Judgment passed by the Intellectual

Property Appellate Board dated 28.12.2018, which is

highly arbitrary, illegal and issued with a

predetermined mind.

The brief facts leading to the filing of the present

petition are as under:

1. That, the Petitioner is a registered proprietor of the

trademark “Ath Ayurdhamah” registered under class

42 having Trademark Application No. 1658391.

2. That, the trademark "Ath Ayurdhamah" is used for

an Ayurvedic Doctors Clinic and Panchakarma

Centre. The said clinic is run by authorized and

recognized M.D. Doctors, i.e, by Dr. Geetanjali

Arora, the registered proprietor and her husband Dr.

Parrneshwar Arora.
3. That, under the said mark the Petitioner prescribes

and manufactures ayurvedic medicines for their

patients. The Centre focuses on Well-being of an

individual through Ayurvedic concepts, and therefore

the word mark "Ath Ayurdhama" is a relevant mark

for the said services provided by the petitioner,

which are in no manner similar to the Respondent

No. 2 word mark "Ayur", and is even phonetically

different from the Petitioner's mark.

A simple search on the internet shows that the term

"Ayur" is a Sanskrit language word meaning "life" or

"vital power". It is one part of the Sanskrit

compound of terms that make up the word

Ayurveda, which means "life" knowledge". Ayurvedic

medicine is a life-giving system of Indian traditional

medicine. Thus, it is clear that the word Ayur is a

generic word and every person has equal right to use

it. That, the word Ayur is a generic word, has a

dictionary meaning, and the Respondent no. 2 has

not invented the word. Thus the Respondent has no

right over the word "Ayur", and the Petitioner herein

has adopted the word "AYUR from Ayurved as it is an

Ayurvedic Doctors Clinic, and not from the

Respondent no. 2 brand name. That, use of the word

Ayur cannot be a sole property of any person, body,

organization, company etc. It is further submitted

that, the mark of the Petitioner is not in

contravention of section 9, 11 or 18(1) of the

Trademark Act, 1999, since the mark of the

Petitioner is distinctive of the services provided by

 the Petitioner as specifically being a doctor's clinic

and Panchakarma Centre. The Petitioner has a

completely different class of consumers as compared

to the Respondent, due to the kind of services

provided by the Petitioner.

The Petitioner has a flourishing practice as an

Ayurvedic Doctor, and the Respondent herein is not

a Doctor and is not identified with any Ayurvedic

treatments as such. And the mark has been adopted

by the Petitioner in an honest and bonafide manner.

4. That, the nature of business and services of the

Petitioner and the Respondent No. 2 is completely

different. The Respondent No. 2 Company is

manufacturing several kinds of products which have

no relevance or connection with the medical practice

and services provided by the Petitioner. The

prescription of medicines by the Petitioner for

ailments of its patients, and the Ayurvedic

treatments provided by the Petitioner have no

relevance, connection or proximity to the goods

manufactured and sold by the Respondent No. 2

Company There is a clear difference between the

nature of work of the Petitioner and the Respondent

No. 2, and therefore similarity in the nature of

customers is ruled out in the present case. The class

of consumer of the Petitioner is completely different

from the class of consumers of the Respondent No.

2.

5. That, some precedents set by the Ld. Courts for use

of generic word as trademarks, and limitations

regarding the same are as follows In the case of

Cadila Health Care Ltd. vs. Diet Foods Ltd.,

2010 SCC Online 3445 the Hon'ble Hon'ble Delhi

High Court held that the manner in which the

expression was being used by the Defendant did not

give an impression that it was linked with the

plaintiff's product and the expression Sugar Free' can

be used by anyone as it is a common term. In a case

where the Petitioner was itself a party, the Hon'ble

Private Limited vs. Emami Limited, 2008 Scc

OnLine Cal 589 held that the plaintiff could not be

allowed a monopoly to use the word Ayur' as it

hinted to the Sanskrit word Ayurveda' which has

these days become a fashionable term which

everyone wants to use in order to associate it with

their products. The court observed that the more

descriptive a word, the closer the resemblance of the

word to the efficacy or the nature of the associated

product, the more e will be the presumption as to its

exclusivity and more demanding will it be on the

plaintiff to establish distinctiveness'. The court held

that a person cannot claim the exclusive use of a

trademark if it exclusively consists of an indication

which serves to designate the nature of the goods In

the case of Kaviraj Pandit BUrga Dutt Sharma

vs. Navratna Pharmaceutical Laboratories,

1965 AIR 980 the Hon'ble Supreme Court has held

that the word Navaratna' was a common term in the

'Ayurved' phraseology and so the plaintilff could not

be allowed the exclusive use of the term. In the case

of J.R. Kapoor vs. Micronix India, 1994 SUPPL.

(2) SCR 567 the plaintiff's mark was Micronix' while

the Defendant was using the mark Microtel, thus, the

Hon'ble Supreme Court held that, the term micro

was descriptive of the products which were produced

using a particular technology and it being a common

word of English language, nobody could claim

exclusive use over it. In Competition Review (P)

Ltd. vs. N.N. Ohja 1995 SCC Online Del 888 the

Hon'ble Delhi High Court refused to grant interim

injunction as it held that the word "competition" is a

word of English language and is a generic term and

hence the plaintiff was not entitled to any injunction

against the Defendant for using the word. It was

held that no protection can be given to anyone for

using such common words of the language as their

trade names. The Hon'ble Delhi High Court in Rupee

Gains Tele-Times Private Ltd. vs. Rupee Times

1995 SCC Online Del 631 held that the word

'Rupee' is synonymous with money. It has been

noticed that almost all the financial journals and

publications have been using either the word

business or financial or money for their journals and

newspapers. Merely because one of the companies

has used the word "Rupee to name its financial

journal will not mean that the said word cannot be

used by any other journal nor it can mean that the

journal first using the said word Rupee has acquired

trademark in the said word. It was further held that

Rupee is a descriptive word not a distinctive word.

The Ld. Court observed that everything connected

with trade and business is described by money,

finances & rupee and it is for this reason that these

words are repeatedly used by all the financial

journals. Therefore, an injunction was refused In

SBL Limited vs. Himalaya Drug Company, 2012

SCC Online Del 136 it was held that: nobody can

claim exclusive right to use any generic word,

abbreviation, or acronym which has become public

jurisdiction, In the trade of drigs it is common

practice to ame a drug by the name of the organ or

ailment which it treats or the main ingredient of the

drug. Such an organ ailment or ingredient being

public Jurisdiction or generic cannot be owned by

anyone for use as a trademark" The Hon'ble Delhi

High Court in the case, Online India Capital Co.

Pvt. Ltd, and Anr, vs. Dimensions Corporate

2000 102 CompCas 352 Delhi refused to grant

interim injunction to the plaintiff for the words

Mutual Fund' as part of domain

name www.mutualfundsindia.com, as it was in its

opinion a descriptive/ generic word and no monopoly

could be claimed in relation thereto by any person. It

was also observed that the words 'mutual funds'

forming part of the plaintiffs' domain name

of www.mutualfundsindia.com was the description of

the character of the services offered by it. Finally the

Court concluded that to the material placed on

record by the plaintiffs prima facie fell short of

indicating that the aforesaid word had acquired a

secondary meaning which is a pre-condition for

granting protection to a descriptive name. The

Hon'ble Supreme Court, while considering the

definition of the expression brand name, in Tarai

Foods Ltd. vs. Commissioner of Central Excise,

(2007) 12 SCc 721 held that the term "New

Improved Quick Frozen French Fries cannot be said

to be a trade mark or a brand name as it did not

establish the link between the manufacturer and the

product and was merely descriptive of the nature

and characteristics of the product. The term 'brand

name connotes such a mark, symbol, design or

name which is unique to the particular manufacturer

which when used on a particular product would

establish a connection between the product and the

manufacturer. The court held that the brand name or

the trade mark etc. cannot, therefore, be the identity

of a person itself. It has to be something else which

is appended to the product and which establishes the

link. In Rich Products Corporation vs. Indo

Nippon Foods Limited, 2010 SCC Online DeL

734 the Hon'ble Delhi High Court had declined an

injunction in respect of Whip Topping, holding it to

be generic term. The use of the words Rich's and

Bells preceding Whip Topping in its opinion removed

any possibility of similarity or confusion In I.T.C.

Limited vs. G.T.C. Industries Ltd. and Anr, 2002

SCC Online Bom 595 the Hon'ble Bombay High

Court held that the word 'Magnum', can serve as an

indication of character or quality or value of the

goods since one of its laudatory and descriptive

meaning is great' and that such words/ marks in the

present facts and circumstances even

BEFORE THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

(CIVIL WRIT JURISDICTION)

Writ Petition (Civil) NO. OF 2019

IN THE MATTER OF:

Geetanjali Arora,
Ath Ayurdhamah,
156-A, New Colony,
Gurgaon Haryana-122001
……………….Petitioner

Versus
1. Deputy Registrar of Trademarks
Trademark Registry, New Delhi

2. Three – N – Products Ltd.,

2/12, West Patel Nagar,
New Delhi-110008
……………..Respondents

AFFIDAVIT OF Dr. P. Arora, S/o Shri Banshidhar Arora, aged

about 39 years, R/o 1890, Sector 4, Haryana.
I, the above-named Deponent do hereby solemnly affirm and declare
as under:
1. That I am a Doctor and one of the owners of
“ATH AYURDHAMAH”.
2. I am the petitioner in the above case and am
conversant with the facts of the case. I am
competent to depose this affidavit.
3. This petition is true and correct to the best of my
knowledge and belief and no content has been
withheld therefrom. And the annexures are true
copies of their respective originals.

Deponent
Verification
I the above named deponent do hereby verify that the contents
of the above affidavit are true and correct to my knowledge and
no part of the same is false.
Verified at New Delhi on this ____ day of March©/ , 2019.
Deponent