N95: Throwing Light on the Generic Expression of Trademark Registration

By: Surbhi Verma

Face Masks are the new normal because of the widespread pandemic worldwide! For the protection and as a safeguard several masks are available in the market but N95 i.e. Not-Resistant to Oil and the respirator block 95 percent of very small particles has gained a vital standing because of its ability to cover the face property and reducing particles from entering into the mouth and keeping the virus at bay. In this article, the author will throw a light on the generic expression of a trademark in relation to the term “N95”.

What is a Trademark?

A trademark is a way for a business to help people to identify their products and differentiate it from other business products. It legally differentiates a product or service from all others of its kind and recognizes the source company’s ownership of the brand.

Generic Expression of Trademark: The N95 Case

The generic term N95 was registered in the Trademark registry bearing Application No. 4487559 under Class 10 for surgical, medical, dental, veterinary apparatus and instruments. To which there was a controversy that Can a Generic term be Registered under the Trademark Act, 1999?

The Intellectual Property Appellate Board held while hearing the Rectification Application filed under Section 57 of Trademark Act, 1999 by SASSOON FAB International Pvt. Ltd. a company engaged in the business of masks stated that the applicant cannot monopolise the word N95 as it is a generic term and it shall not provide the applicant with protection under the trademark statute. The term N95 is a generic term in the mask industry and the trademark registered is not capable of protection and cannot be appropriated by one entity.

The Board further stated that the term N95 is a common term, the same cannot be registered or protected as a trademark nor can one person own the same. The word N95 has been in use around world since early 1970, originally designed by 3M Company for industrial application.

Further, the term N95 also serves as a trade identifier for the kind, quality, intended purpose, and other characteristics of the particular product. Thus, the IPAB barred the registration of this mark on the grounds of Section 9 (1) (b) of the Trademark Act, 1999.

Comment:

In the light of widespread pandemic and increasing environment related issues it is necessary N95 mask is a part of the basic survival kit in combating airborne diseases. Therefore the term N95 cannot be registered as a trademark because it upheld the generic expression embedded under the Trademark Act, 1999.