29 Aug 2018Posted By: Mudit Handa


Why is there clash between HUL & Ministry of AYUSH over use of Ayush trademark?

It is beyond any doubt that a Trademark registration not only acts as a perquisite but is a necessity for a business entity. A Trademark is not merely an intellectual property, but much more than that. It’s a guarantee against unwelcome trade disputes that might arise between 2 parties due to inadvertent or intentional infringement by anyone of them. It is always advised that the while undergoing the process of Trademark search must be done by an individual seeking company formation much before the company name approval process.

The current scenario is of stiff competition among the potential market players ushered in by the era of globalization. There are innumerable cases of Trademark violation by many petty as well as prominent business entities that pertain to the period before & after the Trademark Act-1999 came into being. To quote some, we have the Kit-Kat trademark case or the most recent Paytm v/s. PayPal trademark controversy. The most recent case is of the Lever Ayush Trademark controversy.

 

#1. What is all about the Lever Ayush Trademark controversy?

 

Very recently, the Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy, also known as AYUSH, has requested the Controller General of Patents, Designs and Trademarks not to approve the acronym “AYUSH” for trademark registration to any entity.

This will surely hit the prominent Ayurvedic products brand ‘Lever Ayush’, which is flourishing steadily and is deemed to become the largest Indian FMCG supplier in about a decade.

 

#2. Why is the decision of the Ministry of AYUSH alarming for HUL?

 

One of the most renowned Ayurvedic products brand ‘Lever Ayush’ was recently launched in 2017 by one of the most prominent FMCG giants of India, the Hindustan Unilever (HUL). the request recently by Ministry of AYUSH to disapprove the acronym “AYUSH” for trademark registration has sparked a fresh controversy that can severely affect the client-base of HUL.

  • However, HUL has argued it had assumed the brand name ‘Ayush’ about 2 decades ago, even before the AYUSH ministry was set up in 2014.
  • To this, the Analysts have sharply contradicted that the ministry is referring to ‘Lever Ayush’, for which the trademark application has been done recently and the trademark registration process is on hold.
  • Very importantly, the HUL had made individual trademark application for registering ‘Lever Ayush Plus Therapy’ in 2007 and the ‘Lever Ayush Device’ in 2017.

 

For both these brands, the trademark registration process has been opposed, as per the government website of Intellectual Property India.

 

 

#3. Why has Ministry of AYUSH objected HUL on use of AYUSH acronym?

 

As quoted by a senior spokesperson for Ministry of AYUSH, the Hindustan Unilever has now applied for trademark registration of its ‘Lever Ayush’ brand. The ministry is apprehensive that if the trademark is approved, it may lead to perplexity among the general public, especially the consumers.

The ministry has thus filed a written petition to the Controller General of Patents, Designs and Trademarks to consider this issue for disapproval of ‘AYUSH’ acronym by any 3rd-party.

 

#4. When was the phrase- Ayush first used by HUL?

The phrase ‘Ayush’ has been used since a long time in India.

  • This phrase was first trademark-registered as a brand for Jayalakshmi Oil & Chemical Industries in 1987 and has been used with TM symbol since then.
  • The trademark registration for Ayush was however sold to HUL in 2001 for its new range of the natural beauty & spa products.
  • When the Ministry of AYUSH was set up in 2014, the usage ‘AYUSH’ acronym became objectionable.
  • In 2014, the National Research Development Corp. (NRDC) had filed a lawsuit against HUL on behalf of Central Council for Research in Ayurvedic Sciences (CCRAS). CCRAS is an independent body under the ministry.
  • However, CCRAS itself has used the phrase ‘Ayush’ for 4 decades.
  • Now, to restrain the use of the acronym AYUSH, which was officially coined in April 2003, the Controller General of Patents, Designs & Trademarks has been asked to intervene.

 

#5. What is the reason for the controversy over the use of Ayush?

As mentioned above, the phrase ‘Ayush’ already is covered with trademark registration, but the ministry has objected on use of acronym ‘AYUSH’ by any 3rd-party.

  • In this context, they have referred to HUL’s newly introduced ‘Lever Ayush’ brand, for which trademark has been objected by the trademark authority itself.
  • It is important to note that the ‘Lever Ayush’ brand was launched in 2017, much after the Ministry of AYUSH was formed in 2014.

Moreover, the trademark application for HUL’s ‘Lever Ayush Plus Therapy’ and the ‘Lever Ayush Device’ has been opposed, i.e. they will be treated as trademark opposition.

 

#6. How can the Ayush trademark controversy be clarified?

 

The underlying inference from the above case, as quoted by the legal experts is as follows-

Even if 2 words have been registered separately, they can be used together until the trademark authority restrains it.

Thus, trademark opposition for Lever Ayush by the authority is justifiable.  

 

#7. What legal action, can be taken in this case?

 From the above case, we see-

  • Evidently, the Lever and Ayush are separately registered earlier, and the phrase ‘Ayush’ has been used by HUL since 2001.
  • It can be noticed that both Lever and Ayush are now being used by HUL together. However, the authority has objected such use and has opposed the trademark application process.

In such case, the right to use ‘Lever Ayush’ now stands revocable.

#8. What do we learn from the above case?

 

From the above case, we get that-

  • Any infringement of trademark attracts unwanted conflict and distraction from the normal course of business, not to mention the lengthy process of trademark objection.
  • Evidently, this can lead to a worse case scenario where trademark can be opposed by the authority, as has happened in case of cancelling the use of acronym ‘AYUSH’.
  • On the other hand, if the trademark registration process is done beforehand, it can avoid such awkwardness, just as the use of the phrase ‘Ayush’ has not been opposed.

 

Hence, a timely trademark registration can save one’s right to use his tradename from being revoked.

 

If you need any other guidance as regards online Trademark Registration, feel free to contact us at 8881-069-069.



 

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