The Intellectual Property Appellate Board has stayed the operation of N95 trademark registration. The Board headed by Justice Manmohan Singh observed that a generic expression can never be granted registration and/or protection as a trade mark under the trade mark laws.
The term N95 is a generic term in the mask industry, the N95 trademark registration is not capable or protected as trade mark nor the same can be appropriated by any one entity, the Board observed while considering a Rectification Application is filed by SASSOON FAB International Pvt. Ltd.
The company engaged in the business of masks, had filed the application of N95 trademark registration under Section 57 of Trademark Act, 1999 for Removal of the “N95” label under Reg. No. 4487559 in class 10 registered in favor of one Sanjay Garg.
The company contended that Sanjay Garg had frivolously and fraudulently obtained an unlawful registration of the generic term N95 in class 10. As a result, the company’s N95 masks were removed from ecommerce platform www.amazon.in on the basis of complaints lodged by Sanjay Garg.
It noted that the wording N95 trademark registration is descriptive of a characteristic of the masks, specifically that they filter at least 95% of airborne particles and are not strongly resistant to oil is a standard and is a class of respiratory devices and thus is a generic term.
The Board observed:
“Because the term N95 is a generic term in the mask industry, the same is not capable of being neither registered or protected as trade mark nor the same can be appropriated by any one entity. The term N95 is in use world over ever since early 1970 have to refer to single respirator face masks which were designed to filter 95% of dust particles to enter the nose or mouth and was initially designed by famous 3M Company for industrial uses and announced the same as an industry standard. The same is on the face of record a generic and/or a descriptive mark which is used extensively not only by members of the trade but by various government authorities, institutions to refer to a particular type of the respiratory mask, which are in huge demands by hospital authorities, healthcare workers, and even general public due to ongoing COVID-19 pandemic and due to government mandate to especially the mark are related to Healthcare. The term N95 further serves as an indicator in the trade to designate the kind, quality, intended purpose and other characteristics of the particular product which is nonproprietary in nature. The N95 trademark registration of the impugned mark was thus barred under the absolute grounds of refusal under Section 9 (1) (b) of the Trade Marks Act, 1999.”
