N95 is a basic term that we have heard in this pandemic and it is very common in the mask industry. The term N95 cannot be given to some specific entity or brand neither can be registered as a trade mark and the same was recognized by authorities at the Intellectual Property Appellate Board (IPAB) when going through the Rectification Application filed by SASSOON Fab International Pvt. Ltd against Sanjay Garg.
The problem faced by the company was that the N95 masks produced by them were being removed by the famous E-commerce platform Amazon because Mr. Garg has deceitfully and unfairly registered the term N95 masks under class 10 and filed a complaint for the same. The company SASSOON Fab International Pvt. Ltd also deals with masks. In the advent of Covid-19, the sales of company were also getting hampered because of the complaint filed by Mr. Garg. SASSOON Fab International Pvt. Ltd filed an Application under section 57 of Trade Mark Act, 1999 for removal of the N95 label under Reg. No 4487559 in class 10 which was registered under Mr. Sanjay Garg.
The application was heard by the board headed by Justice Manmohan Singh who stated that something so generic and which defines the nature of a product cannot be registered under the trade mark, especially a term like N95 which also defines that it filters 95% of air particles and is not powerfully resistant to oil which are all characteristics of the term. Therefore, it cannot be registered and protected under a trade mark.
It was also observed that Mr. Garg deceitfully registered this as a trade mark and used it for personal advantage by blackmailing and grabbing money from innocent manufacturers.
The Board stated that:
Because the term N95 is a general 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 all over the world ever since early 1970 which is a single respirator face mask 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 one and a descriptive mask which is used extensively not only by members of the trade but by various government authorities and institutions to refer to a particular type of the respiratory mask which are in huge demand by hospital authorities, healthcare workers and even general public due to ongoing COVID-19 pandemic and due to government mandate to especially the masks 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 not proprietary in nature. The registration of the impugned masks was thus barred under the absolute grounds of refusal under section 9(1)(b) of the Trade Marks Act,1999.
While giving the above statement, the court also cited the case of Madras High Court where it was said that Magic and Masala are generic terms and are used by different manufacturers, therefore, it cannot be registered as a trade mark.
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