Rush for CORONA marks at Indian Trademark Registry
The business opportunities emerging from health scare caused by CoronoVirus pandemic, has resulted in many small and big pharmaceutical and Ayurvedic, Herbal product manufacturers worldwide filing for trademarks containing the word CORONA. India is not far behind. A search in class 5 ( the relevant class for medicines) shows 25 pending applications for the marks containing the expression CORONA. All of the marks have been filed from March to June 2020. The earliest application is dated March 8, 2020 for a food supplement under the mark DHL CORONAVIRUS PREVENTIVE by a company trading as Dalmia Healthcare Limited, Delhi. The other notable trademarks are NOCORONA, ZEROCORONA, CORONASH (a combination of CORONA and NASH, a Hindi word which means finish or end), ANTI CORONA TwentyTwenty 20 20 – Hand Sanitizer Soft on Hands Tough On Virus. Also, an application for GO CORONA GO filed by Cathode Pharmaceuticals in May for hand sanitizers, etc. is quite interesting. The phrase was GO CORONA GO made famous by a sitting member of Parliament when CoronoVirus was making its presence felt in India. He organized a protest where this phrase was repeatedly used, and later, a rap artist converted it into a song as well.
Another twist in the CORONA marks adoption to create an association with the virus came with the launch of CORONIL tabs by the famous Yoga guru, Baba Ramdev’s Divya Yog Mandir Trust and Patanjali. The CORONIL formulation of herbs and minerals was initially launched as a cure/treatment for CoronoVirus. However, such a claim ran into hurdles with the Governmental authorities especially as it qualified as being an immunity booster rather than as cure for the disease. The product is now sold only as an immunity booster and not Corona cure. The Baba Ramdev organization had already applied for the mark/s CORONIL VATI and CORONIL Tablet for ayurvedic, herbal, pharmaceutical preparations etc., covering a wide range of goods falling in class 5 in the month of June 2020. It is rather arguable whether the use of mark CORONIL, (a combination of CORONA and NIL) that signifies putting an end to CORONA though used for an immunity booster formulation, is in fact misleading. This issue incidentally came before the Madras High Court in an action brought by a Chennai based company Arudra Engineering Private Limited (Arudra), alleging trademark infringement. Arudra sought an injunction restraining Patanjali Ayurved Limited, (Patanjali) and Divya Yog Mandir Trust, subsequently joined as a defendant, from using the mark CORONIL or any deceptive variation.
The Madras High Court held Use of a CORONIL by Patanjali is without “Due Cause”
The court held Patanjali initially projected their product ‘Coronil’ as a treatment for Coronavirus and later backtracked to it being an immunity booster for cough and cold. This as per the Arudra was an infringement of their registered trademark ‘without due cause’. Further such use has caused substantial damage to the reputation of Arudra’s mark with respect to its quality. Arudra argued that projection of the ‘Corona Tablet’ initially as a treatment for Coronavirus and later stating it to be an immunity booster for cough and cold would lead a common man to also to doubt whether the Coronil chemical agent marketed by the Arudra would actually also water down to being something inferior in quality than what it had been actually projected namely, as an agent to remove corrosion or prevent corrosion. The Court took the view when Patanjali’s product does not cure Coronavirus, “then the defendants [Patanjali] could have used any name to signify their product as an immunity booster and market the same to the general public rather than play upon the fear and panic among the public by introducing a product ostensibly to cure Coronavirus, when as a fact, it does not and later stating it is an immunity booster. The stand of the defendants [Patanjali and Divya Yog Mandir] does not augur well with their statement that they have a due cause. They do not have a due cause. It must be kept in mind, that there is no cure for Coronavirus anywhere in the world as on date. People are dying. In these tragic times, the defendants [Patanjali and Divya Yog Mandir] seek to make money, money, money. They seek to exploit the fear among the people by projecting that they could cure Coronavirus. There is no cause much less due cause, and much less just cause to permit the defendants from using the word ‘Coronil’.
Importance of Due Diligence
The big lesson for brand owners in this case comes from Court’s observation “The Defendants [Patanjali and Divya Yog Mandir] have invited this litigation on themselves. A simple check with the Trade Marks Registry would have revealed that ‘Coronil’ is a registered trademark. If they had, and had still, with audacity used the name ‘Coronil’, then they deserve no consideration at all. They cannot assume they can bulldoze their way and infringe a registered trademark. They must realise there is no equity in trade and commerce. If they had not done a check with the Registry, then they are at fault. They cannot plead ignorance and innocence and seek indulgence from this Court. Either way, indulgence is refused.”
Overall, the brand selection went wrong, resulting in a restraint order, monetary loss, and bad PR for yoga guru Baba Ramdev’s companies, Patanjali Ayurved and Divya Yog Mandir Trust for the adoption of a misleading mark.
Registrability of CORONA marks
Finally, the Corono Virus obviously has an association with a disease, which is declared a global pandemic, and as on date, it has no cure. The question that comes to mind is, why would someone want to brand its product/s CORONA? It seems other than the products sold to fight against the virus (such as sanitizers, immunity boosters, masks etc.,) the consumer perception of the mark is also important which is, in any case, now associated adversely with a disease. The declining sale of CORONA beer is a point in the example. It will be interesting to see if any of the trademarks in class 5 will pass the distinctiveness test and granted registration. The marks will have to show evidence of having attained acquired distinctiveness by extensive use. Overall such marks will be taken as “weak mark” from the enforce-ability perspective, especially when their reference to the disease is apparent.