A trademark is protected by intellectual property rights and is a sign which
distinguishes the goods and services of different enterprises. The trademark can
be defined as "a mark capable of being represented graphically and which is
capable of distinguishing the goods or services of one person from those of
others and may include the shape of goods, their packaging and combination of
According to Trademark Act, a mark will include "a device, brand,
heading, label, ticket, name, signature, word, letter, numeral, shape of goods,
packaging or combination of colours or any combination thereof." [ii]
The term "Publici Juris" derives its origin from the Latin phrase which means
'of public right' or 'belonging to the public' or 'subject to a right of the
public to enjoy'. It specifically deals with the cases of intellectual property
where it identifies a thing or term or right to be available to everyone in
society. The term indicates that the things or rights which reside in the entire
community cannot be claimed by an individual or private person and anyone in the
community can use their right over the thing.
On different occasions, the judiciary has taken a different approach to the
terms under Publici Juris. In SBL Ltd. v. Himalaya Drug Company
[iii], the right
over the term 'Liv' was claimed by Himalaya Drug Company. The court held that
the term 'Liv' is an abbreviation of the term 'Liver' and therefore is a generic
term of publici juris and no one can be granted an exclusive right over the
term, abbreviation, or acronym.
This case was followed by the judgment given by
the Madras High Court in the case of Meto v. Metox
where it was held that
exclusive right cannot be given to the word 'Meto' as it is derived from the
chemical composition of 'Metoprolol' which is a generic term hence it was
The court further held in Apex Laboratories Ltd v. Zuventus
Health Care Ltd
[iv] that if the clear distinction cannot be made out in the
nature of the word, then the prefix and suffix of the word or the remaining part
thereof may be considered to make a distinction. Here the word 'Zinco' was
challenged to be a word of public Juris.
The similarity drawn by the Court in
these two cases was, in the case of a pharmaceutical drug which is being sold
under a valid prescription, the chances are very rare that people will be
deceived or get confused because the same abbreviation of any organ or ailment
or chemical component is being used by a different manufacturer.
of prefixes and suffix to derive the distinctiveness of a product when it uses
the term which in "Publici Juris" can be collected from the case of J.R. Kapoor
v. Micronix India
[v] where the 'micro' was in question as the parties in
controversy were Micronix India and Microtelematix. The Supreme Court held that
the word 'micro' is used in the relevance of the micro-chip technology to define
the product and its use. Therefore, the prefix micro will not cause any
infringement and distinction can be made out by the suffix of the names of the
The Trademark Act 1999 prescribes different situations where a mark may be
refused for registration, for instance; When it is of such nature as to deceive
the public or cause confusion[vi]; or it's identical with an earlier trade
mark[vii] and similar with goods or services covered by the trade mark; or its
similarity to an earlier trade mark and the identity or similarity of the goods
or services covered by the trade mark.
In the case of Kaviraj Pandit Durga Dutt Sharma v. Navratna Pharmaceutical
[viii], the court has laid down the principles which are to be
followed while dealing with the cases of trademark infringement. The principles
largely deal with the onus in these cases as the onus will be on the plaintiff
and in a situation where two marks are identical then no further question will
arise regarding infringement but where two marks are not similar then the
plaintiff would have to establish that the mark used by the defendant so nearly
resembles plaintiff's registered trademark as it is likely to confuse or deceive
the public at large.
The courts have taken into consideration several times that the
words in Publici Juris cannot be allotted exclusively to one person as the right
resides in every person in the community. In the case of pharmaceutical
companies, when a company uses a trademark with an abbreviation of organ,
chemical composition or ailment then the abbreviation or word per se will not be
a subject matter of trademark infringement.
Infringement can be said to be done
when a product is likely to deceive because of the similarity of names but in a
situation where the names of publici juris is there then the weightage is given
to the prefix and suffix which is likely to distinguish the products.
- Trademark Act 1999, s 2 (zb).
- Trademark Act 1999, s 2 (m).
- SBL Ltd. v. Himalaya Drug Company  AIR 1998 Delhi 126.
- Apex Laborataries Ltd v. Zuventus Health Care Ltd  (33) PTC 492
- J. R. Kapoor v. Micronix India  3 Suppl. SCC 215.
- Trademark Act 1999, s 9(2).
- Trademark Act 1999, s 11.
- Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical
Laboratories, 1965 AIR 980.
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