IPAB asks registrar to axe Udhayam ghee trademark

The decision comes on a rectification plea of joint proprieter of the trade mark Udhaiyam

The Intellectual Property Appellate Board (IPAB) has allowed a rectification application cancelling the trademarks Udhayam and GRB Udhayam from the registry, in a petition filed by a joint proprietor of the trade mark Udhaiyam, a food brand marketed by Shri Lakshmi Agro Foods Pvt Ltd.

Shri Lakshmi Agro’s sales turnover by sale of their products under the trademark runs to approximately Rs 178.50 crore.

The order was on rectification applications filed by S Sudhakar, joint proprietor of the trade mark Udhaiyam, carrying on business through Shri Lakshmi Agro Foods Pvt Ltd.

The company is engaged in the business of marketing food and allied products such as Dhal, under trademark Udhaiyam.

The applications were filed against the trade mark Udhayam, under which GRB Dairy Food Pvt Ltd, which has been allegedly marketing its ghee products under GRB's Udhayam Ghee, in which the trademark GRB was used in a very insignificant manner and the mark Udhayam was predominantly used, according to the applicant.

Allowing the application, IPAB vice-chairman S Usha and Technical Member Sanjee Kumar Chaswal, said, "Considering the fact that the respondents have not satisfied the Registrar as regards the date of use, the mark deserves to be removed for wrong date of user... In view of the above, we allow the rectification application with a direction to the Registrar to cancel the trade marks registered under No 785124 and 1077180 in class 29".

GRB argued that S Sudhakar has no locus standi to file the rectification application since the application for trademark was registered in the name of the partnership firm. It also argued that the firm Udhayam Dairy Farm is in existence since 1984 and the brand 'GRB' was started in the year 1990. They are manufacturing ghee under the subject brand 'Udhayam' in respect of ghee as a sole proprietary firm GR Balasubramaniam and Co since the year 1993 and subsequently under the trademarks GRB and Udhayam. The trade marks were assigned to 'GRB' Dairy Foods. On March, 2001, GRB Dairy Foods was taken over by 'GRB' Dairy Foods Private Limited. The company has grown with a multi crore turn over, they added.

The applicants alleged that the sales turn over for the sale of ghee under the trademarks GRB and Udhayam is only Rs 4.49 lakh and the use of the trademark 'Udhayam' by the firm Udhayam Diary Farms is only of the year 1991.

The IPAB observed that GRB has not given any reason for their adoption of the trade mark 'Udhayam' except that they had been carrying on business under the trading style Udhayam Dairy Farm. "On perusal of the records, it is seen that the respondents had been carrying on business under the name Udhayam Dairy Farm between the period 1991-1993. When that is the case, the respondent's statement that they have adopted the trade mark 'Udhayam' from the trading style cannot be accepted," said the order.

Another contention of GRB Dairy was that the goods are different, on which the Board said that "In our considered opinion the trade channels are the same when that is so then the class of customers are to be considered. The customers who purchase the goods of the applicants and the respondents belong to all class ie, literate and illiterate. Therefore, there is every possibility that there may be confusion among the public. The respondent's contention does not hold good."