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No medical negligence = False claim alleging that operation was done over the dead body by playing mellow drama patient was joined with heart ailment for two days for claiming operation charges -No medical negligence Dismissed = Surinder Singh -verses -1. Escorts Heart Institute & Research Centre and others = published in http://164.100.72.12/ncdrcrep/judgement/00131111150515946OP46402.htm
No medical negligence = False claim alleging that operation was done over the dead body by playing mellow drama patient was joined with heart ailment, for two days for claiming operation charges -No medical negligence Dismissed = Opposite parties have proved on record the nurses charts / notes maintained by Duty nurses who attended to the patient Virendr Kaur after the surgery till … Continue reading
M. Padmanabhacharlu – Great Father
Passing Night Relieved the life from Great Journey of 85 years My Father’s soul rest in Great Peace with out bedridden Great Personality stands for his words and Deeds – Great Father My father left behind him adorable Works & adoptable Life Style Work till last breathe ; Never be burden for yourself ; Save your health & … Continue reading
UNFAIR TRADE PRACTICE – QUACK DOCTOR = According to the appellant, she came across an advertisement published in a newspaper ‘Jan Satta’ dated 8.8.1993 offering treatment of the patients having fits with Ayurvedi medicine by Dr. R.K. Gupta respondent No.1. The advertisement impressed the appellant as the respondent No.1 claimed total cure of fits. The appellant wrote a detailed letter to respondent No.1 about her son’s fits during high fever. In response, respondent No.1 sent a letter dated 23rd November, 1993 assuring that he had specialised treatment for the problem of Prashant by Ayurvedic medicines. despite medicines being given regularly the condition of Prashant started deteriorating day by day and the fits which were occasional and occurred only during the high fever, started occurring even without fever. = he is a quack and guilty of medical negligence, criminal negligence and breach of duty as he was playing with the lives of innocent people without understanding the disease. He was prescribing Allopathic medicines, for which he was not competent to prescribe. It was, inter alia, prayed that direction be issued to respondents to pay a sum of Rs.20 lakhs as compensation; to refund the charges paid by the appellant to the respondents and to reimburse the expenses incurred by the appellant on travelling to Rishikesh and a sum of Rs.10 lakhs for undergoing termination of pregnancy. = The National Commission has already held that respondent No.1 was guilty of unfair trade practice and adopted unfair method and deceptive practice by making false statement orally as well as in writing. In view of the aforesaid finding, we hold that both Prashant and the appellant suffered physical and mental injury due to the misleading advertisement, unfair trade practice and negligence of the respondents. The appellant and Prashant thus are entitled for an enhanced compensation for the injury suffered by them. Further, we find no reason given by the National Commission for deducting 50% of the compensation amount and to deposit the same with the Consumer Legal Aid Account of the Commission. 16. We, accordingly, set aside that part of the order passed by the National Commission and enhance the amount of compensation at Rs.15 lakhs for payment in favour of the appellant with a direction to the respondents to pay the amount to the appellant within three months. The appeal is allowed but there shall be no separate order as to costs.
Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8660 OF 2009 BHANWAR KANWAR …. APPELLANT VERSUS R.K. GUPTA & ANR. ….RESPONDENTS J UD G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. This appeal has been preferred by the complainantappellant against the order and judgment dated 29th January, 2009 passed by the National Consumer Disputes Redressal Commission, New Delhi (hereinafter referred … Continue reading
Insurance policy claim – The appellant’s father lodged a claim for compensation by asserting that his son had suffered loss of vision due to accidental fall. After long correspondence, the respondents rejected the claim on the ground that the same was not covered by the policy. = Phthisis Bulbi is the endstage anatomic condition of the eye in response to severe ocular disease,infection, inflammation, or trauma. Clinically, it is categorized by a soft strophic eye with disorganization of intraocular structures. Phthisis Bulbi can be caused due to ocular injury, radiation, infection, or diffusion disease. Initial damage to intraocular structures either from penetrating trauma or inflammation can eventually lead to widespread atrophy and disorganization of the eye – Dictionary of Cell and Molecular Biology and Radiology of the Orbit and Visual Pathways, by Jonathan J. Dutton, Prof. of Ophthalmology, University of North Carolina at Chepal Hill, USA.= it is clear that the State Commission and the National Commission committed serious error by dismissing the complaint of the appellant by assuming that his right eye was afflicted with the disease of Phthisis Bulbi and the same was the cause of loss of vision. They completely ignored the report of the Medical Board which had opined that Phthisis Bulbi can be caused due to injury caused due to fall. Before the State Commission, sufficient evidence was produced by the appellant to prove that he had an accidental fall on 22.10.1999 and as a result of that, right side of his head and the right eye were injured. Therefore, there is no escape from the conclusion that the appellant’s case was covered by the policy issued by respondent No.1 and the State Commission and the National Commission committed serious error by rejecting his claim. – In the result, the appeal is allowed, the impugned order as also the one passed by the State Commission dismissing the complaint filed by the appellant are set aside and the respondents are directed to pay compensation of Rs.7,00,000/- to the appellant with interest at the rate of 6% per annum from the date of filing the complaint. 16. The respondents are directed to pay the aforesaid amount to the appellant within a period of eight months from the date of receipt/production of copy of this judgment.
Page 1 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2759 OF 2013 (Arising out of SLP(C) No. 25991 of 2008) Sandeep Kumar Chourasia …Appellant versus Divisional Manager, the New India Insurance Company Ltd. and another …Respondents J U D G M E N T G. S. Singhvi, J. 1. Leave granted. … Continue reading
Penal Code 1860, Sections 304-A, 88, 92, 93-Criminal Liability for Medical Negligence-Death due to medical negligence-Criminal liability of doctor-Held, to prosecute a medical professional for criminal negligence it must be shown that the accused doctor did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do-Hazard taken by the accused doctor should be of such a nature that the resultant injury was most likely imminent-On facts, held, doctor can not be proceeded against under S. 304-A as it is a case of non-availability of oxygen cylinder-Rationale for special treatment of doctOTHERS discussed in detail and guidelines laid down to protect interest of doctOTHERS, and to save them from unwarranted and malicious proceedings. Sections 304-A, 88, 92, 93-Mens rea in criminal negligence-Held, for negligence to amount to a criminal offence, the element of mens rea must be shown to exist- Recklessness, i. e. disregard for the possible consequences, constitutes the mens rea in criminal negligence. Section 304-A-Negligence-As a tort and criminal negligence-Nature of Negligence required-Held, to fasten liability in criminal law, degree of negligence has to be higher than negligence enough to fasten liability for damages in civil law-For criminal libility, the negligence has to be gross or of a very high degree-Expression “rash and negligent act” to be reads qualified by “grossly”. 304-A-Liability under-When attracted-Held, death must be direct result of act of accused-Such act must be causa causans-Not enough if it is cause sine qua non-Criminal Law-Negligence-Causation. Section 304-A-Res ipsa loquitor-Applicability in criminal law-Held, this rule cannot be applied for determining per se the liability for negligence in criminal law and case under section 304-A cannot be decided solely by applying this rule. Tort-Professional negligence-Scope of-Held, a professional may be held liable for negligence if he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise the skill which he possessed with reasonable competence in the given case-Standard of care required is of the ordinary competent person exercising ordinary skill in that profession-Test laid down in Bolam’s case held, applicable in India. Professional negligence distinguished from occupational negligence. Tort-Negligence-Medical Neglicence-Detailed explanation of when devation from normal medical practice would amount to evidence of medical negligence. Tort-Negligence-Res ipsa loquitor-Application to Medical Practioners-Held, has to be applied with extreme care and caution to the cases of medical negilgence. Complainant’s father was admitted to the hospital. He felt difficulty in breathing. Duty nurse called some doctor to attend to the patient. No doctor turned up for 20-25 minutes. Then the appellant and another doctor came to the patients room. An oxygen cylinder was brought and connected to the mouth of the patient but the breathing problem increased further. The oxygen cylinder was found to be empty. There was no other gas cylinder available. Later, the patient was declared dead. An offence under sections 304-A/34 Penal Code, 1860 was registered and charges filed against the doctOTHERS. Doctor’s petition to High Court to quash the charges was dismissed. Hence the appeal. Citation: 2005 AIR 3799,2005(2 )Suppl.SCR383 ,2005(6 )SCC300 ,2005(6 )SCALE173 ,2005(6 )JT614Allowing the appeal, the Court HELD : 1.1. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failute of taking precautions what has to bee seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. [338-B-F] 1.2. A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to posses the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. The test for determining medical negligence as laid down in Bolam’s case [1957] 1 W.L.R. 582, holds good in its applicability in India. [338-F-H; 339-A] Micheal Hyde and Associates v. J.D. William & Co., [2001] PNLR 233; Bolam v. Friern Hospital Management Committee, [1957] 1WLR 582 Eckersley v. Binnie, [1988] 18 Con LR 1; Hucks v. Cole, [1968] 118 New LJ 469; Maynard v. West Midlands Regional Health Authority, [1985] 1 All ER 635 and Hunter v. Hanley, [1995] SLT 213, relied on. Suresh Gupta (Dr.) v. Govt. of NCT of Delhi, [2004] 6 SCC 422; John Oni Akerele v. R., AIR (1943) PC 72; Kurban Hussein Mohammedali Rangwalla v. State of Maharashtra, [1965] 2 SCR 622; Kishan Chand v. State of Haryana, [1970] 3 SCC 904; Juggankhan v. State of M.P., [1965] 1 SCR 14 and Emperor v. Omkar Rampratap, (1902) 4 Bom LR 679, relied on. Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, [1969] 1 SCR 206; Indian Medical Association v. V.P. Shantha, [1995] 6 SCC 651; Poonam Verma v. Ashwin Patel, [1996] 4 SCC 332; Achutrao Haribhau Khodwa v. State of Maharashtra, [1996] 2 SCC 634; Spring Meadows Hospital v. Harjot Ahluwalia, [1998] 4 SCC 39; Whitehouse v. Jorden, (1981) 1 ALL ER 267 and State of Haryana v. Santra, [2005] 5 SCC 182, referred to. 2.1. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. For negligence to amount to an offence, the element of mens rea must be shown to exist. It is recklessness that constitutes mens rea in criminal law as far as negligence is concerned. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. [318-C, E, H; 319-A; 320-C; 339-A-B] 2.2. The word `gross’ has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be `gross’. The expression `rash or negligent act’ as occurring in Section 304A of the IPC has to be read as qualified by the word `grossly’. To impose criminal liability under Section 304-A IPC, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another’s negligence. [332-C-D; 339-C-D] 2.3. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. [339-D-E] R. v. Lawrence, [1981] 1 All ER 974; R. v. Caldwell, [1981] 1 All ER 961; Andrews v. Director of Public Prosecutions, (1937) AC 576; Syad Akbarnr v. State of Karnataka, [1980] 1 SCC 30; Reg v. lndu Beg, [1881] 3All 776 Riddell v. Raid, [1942] 2 All ER 161; Bhalchandra Waman Pathe v. State of Maharashtra, (1968) Mah LJ 423 (SC), relied on. Roscoe’s Law of Evidence (15th Edn.), pp. 848-49; “Speeches and Poems with the Report and Notes on the Indian Penal Code” by Lord Macaulay (Houghton Mifflin and Company, published in 1874), pp. 419, 421 & 422; Alan Merry and Alexander McCall Smith ErrOTHERS, Medicine and the Law (Cambridge University Press, 2001), pp. 241-248, relied on. 3. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence. [339-E-F] Syad Akbar v. State of Karnataka, [1980] 1 SCC 30, relied on Krishnan v. State of Kerala, [1996] 10 SCC 508, explained, 4. To protect the interest of doctOTHERS and to save them from unwarranted and malicious proceedings, statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, the following guidelines will be in force which should govern the prosecution of doctOTHERS for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner, unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested. [340-F-H; 341-A-B] 5. In the present case all the averments made in the complaint, even if held to be proved, do not make out a case of criminal rashness or negligence on the part of the accused-appellant. It is not the case of the complainant that the accused-appellant was not a doctor qualified to treat the patient whom he agreed to treat. It is a case of non-availability of oxygen cylinders either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty. Then, probably the hospital may or may not be liable in civil law but the accused-appellant cannot be proceeded against under Section 304-A IPC on the parameters of the Bolam test. [341-C-E] G.E. Vahanvati, Rakesh Dwivedi, Ashok H. Desai, Vivek K. Tankha, Rupinder Singh Suri, Mrs. Gurvinder Suri, Jagjit Singh Chhabra, Atul Nanda, Addl. Advocate General for State of Punjab, Bimal Roy Jad, P.N. Puri, Maninder Singh, Kirtiman Singh, Saurabh Mishra, Angad Mirdha, Mrs. Pratibha M. Singh, Devadatt Kamat, Ms. Rameeja Hakem, Chinmoy Pradip Sharma, Hrishikesh Barua, Ms. Suruchi Suri, Ravinder Narain, Ms. Sushma Sharma, Ms. Meghalee Barthakur, Ms.Kanika Gamber, Rajan Narain, Harekhrishna Upadhyaya, Prashant Kumar, Siddharth Singh Chauhan, Harsh Pathak, A.A. Maitrya, Praveen Khattar, Mrs. Sudha Gupta, Avik Datt and V. K. Monga for the appearing parties.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 21 CASE NO.: Appeal (crl.) 144-145 of 2004 PETITIONER: Jacob Mathew RESPONDENT: State of Punjab & Anr. DATE OF JUDGMENT: 05/08/2005 BENCH: CJI R.C. LAHOTI,G.P. MATHUR & P.K.BALASUBRAMANYAN JUDGMENT: J U D G M E N T R.C. LAHOTI, CJI Ashok Kumar Sharma, the respondent no.2 herein … Continue reading
negligence of the doctors – shock and multiple organ failure, =The Complainant had fractured his hip which was fixed at OP hospital by the concerned doctors with screws. On 12.1.2004 he came to the hospital for removal of his screws for which an operation was performed under the supervision of an anaesthetist. The Complainant allegedly, suffered septicaemic shock and multiple organ failure, due to negligence of the doctors at OP hospital. = the infection occurred during the stay of the Complainant at the hospital. On the other hand, there is nothing to show that the source of infection lay outside the hospital. Thus, there is preponderance of possibilities of the infection having been acquired in the hospital itself. We therefore, do not accept the contention that it was necessary for the Complainant to produce expert evidence to prove negligence on the part of the concerned doctors in the hospital.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3698 OF 2012 (Against the order dated 12.06.2012 in First Appeal No.644 of 2010 of the A.P. State Consumer Disputes Redressal Commission) The Apollo Emergency Hospital Near Old MLA Quarters, Hyderabad, Rep. by its Chief Executive Officer ……….Petitioner Versus 1. Dr. Bommakanti Sai Krishna S/o Jagannadharao Occ: Doctor, Sai Orthopedic And Maternity Hospital Palakole, West Godavari … Continue reading
Medical Negligence = the case of the Complainant was that her mother, Smt. Parvata Vardini was operated for hysterectomy in the OP-1 hospital on 28.4.1994. Her condition worsened when she developed abdominal swelling and respiratory problem. Allegedly, it was informed that a puncture wound was found in her intestine and leakage from it had to be removed. On 4.5.1994, another surgery was performed on her by OPs 3 to 6 but the patient died on the next day i.e. 5.5.1994.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.4690 OF 2009 (Against the order dated 12.10.2009 in First Appeal No.37/2007 of the State Commission, Andhra Pradesh) Pragathi Hospitals, Nizamabad, Managed by Pragathi Hospital Trust, Hyderabad Road, Nizamabad Represented by its Trustee Dr. Ala Lakshma Reddy, S/o. A.V. Ganga Reddy, Nizamabad. 2. Dr. Meenakshi W/o. Dr. P.V. Ramakrishna, R/o Nizamabad. 3. Dr. P.V. Ramakrishna S/o S.Venkatachalam R/o Nizamabad ……….Petitioners … Continue reading
“(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam case, WLR at p.586 holds good in its applicability in India.”
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.115 OF 2005 (From the order dated 02.03.2005 in Complaint No.70/2000 of the State Commission, M.P.) Prem Bala …Appellant Versus Dr.(Mrs.) Satinder Saluja & Ors. …Respondents BEFORE : HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON’BLE MRS. VINEETA RAI, MEMBER For the Appellant : Mr. D.S. Chauhan, Advocate For the Respondents : NEMO. Pronounced … Continue reading
“AYUR” is a generic word and no one can claim exclusive right to the said word and that there is no evidence of confusion. No one will mistake “AYUR” and “AYURTHEERAM” as identical or even deceptively similar. The letter enclosing the “Green Leaf” classification to the respondent shows that Ayurveda has been elevated as USP of Kerala Tourism. The respondent is a full-fledged resort in the Kerala backwaters. They claim to have therapy rooms. The respondent has shown in its balance sheet expenditure under the head “Ayurvedic expenses” or “Ayurvedic Centre” expenses. In the balance sheet as on 31.3.2002, secured loan on the landed property at Komarakom Village is shown According to tradition, Ayurveda is the “science of life”. But we have decided today that the appellants herein is not entitled to claim proprietorship over the mark “AYUR” and we have ordered removal of the mark in TRA/138/2004/TM/DEL, TRA/139/2004/TM/DEL and TRA/116 to 118/2004/TM/DEL. We have held that “AYUR” is generic which has a dictionary meaning and is not an invented word and the appellant cannot appropriate “AYUR” excluding everyone else from using it legally as a mark. In view of the above and the decision of the judgment of the Hon’ble Calcutta High Court we will not interfere with the impugned order. 15. Appeal OA/15/TM/CH/2010 is dismissed with costs of Rs.10,000/-. Miscellaneous Petition No.32/2010 is dismissed as infructuous.
INTELLECTUAL PROPERTY APPELLATEBOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018 M.P.No.32/2010 in OA/15/2010/TM/CH AND OA/15/2010/TM/CH FRIDAY, THIS THE 18th DAY OF MAY, 2012 Hon’ble Smt. Justice Prabha Sridevan … Chairman Hon’ble Ms.S. Usha … Vice-Chairman M/s. Three-N-Products Pvt. Ltd. 2/12 West Patel Nagar New Delhi-110008. … Appellant … Continue reading
Can any one claim that “AYUR” is an invented word? Can anyone claim that Ayur (short A) differs from Ayur (long A)? Can anyone claim that in India the home of Ayurveda, he alone can use Ayur? (Charaka and Susruta the fathers of Ayurveda must be looking sadly from wherever they are). Can any one claim such a monopoly over the letters A, Y and U that even the word “MAYUR” gets thrown over? The answer should be No. But the respondent would like to hear a Yes.= Finally we are of the opinion that – (a) The respondent has admitted “AYUR” means ‘life’. Therefore their contention that “AYUR” is an invented word is unacceptable; (b) The respondent claims that the mark is used for non-ayurvedic product. If so, the use of “AYUR” is deceptive since the ordinary consumer will think it is an ayurvedic product; (c) Contrarily the respondent also claims it is rooting their products in Ayurveda. If so, use of the mark is descriptive and cannot be accepted; (d) “AYU” and “AYUR” are words belonging to the public domain; no one can appropriate it exclusively; (e) Admittedly, “AYUR” means life and the words are associated in the public consciousness with ‘Ayurveda’ and ‘healthy life’ and no one can appropriate it to oneself; (f) The respondent has not proved that the mark has acquired distinctiveness and in fact such a mark can never acquire distinctiveness. It is like using the mark “Soap” for soap; (g) The applicant on the other hand has produced evidence to show that “AYUR” means ‘Ayurveda’ to the consumers or it means ‘life’ or ‘ayurvedic’ product, so the mark is likely to cause confusion and deception; (h) The respondent has stated before the English Court in the decision of the Cancellation Division, that ‘Ayurveda’ means ‘science of life’. Therefore the respondent has misled the Registrar. This mark shall not remain on the Register; (i). The mark cannot pass either the test of Section 11 nor the test of Section 9 of the Act; and (j) Public interest would be harmed if this mark remains in the register thereby preventing other persons in our country access to a common Indian word denoting an ancient system of medicine. 23. For all these reasons, the marks bearing Nos.421919 in Class 3, 504095 in Class 5, 691956 in Class 3, 691957 in Class 3 and 691958 in Class 3 are removed. The applications TRA/138/2004/TM/DEL (CO No.6/2003), TRA/139/2004/TM/DEL (CO No.8/2003), TRA/116 to 118/2004/TM/DEL (CO No.9 to 11/2003) are allowed with costs of Rs.1,00,000/- in aggregate, that is, @ Rs.20,000 for each of the rectification petition.
INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018 (CIRCUIT BENCH SITTING AT DELHI) TRA/138/2004/TM/DEL (CO No.6/2003) TRA/139/2004/TM/DEL (CO No.8/2003) TRA/116 TO 118/2004/TM/DEL (CO No.9 to 11/2003) FRIDAY, THIS THE 18th DAY OF MAY, 2012 Hon’ble Smt. Justice Prabha Sridevan … Chairman Hon’ble Ms.S. Usha … Vice-Chairman Hindustan Unilever Limited … Continue reading
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