Bill Gates said, "capitalism is a wonderful thing that motivates people, it causes wonderful inventions to be done. But in this area of diseases of the world at large, it has really let us down."

While the world is fighting the COVID, some are making the most of it as an opening for commercial gains and are filing patent and trademark registrations globally and in India, under certain terms and phrases that have gained popularity in the recent times.

In the last few months, with a drastic increase in demand of masks and hand sanitizers in India, wherein the consumers have realised that these products are essential for daily requirements of hygiene, various local manufacturers/ SMEs have been inspired to manufacture local products. They are encouraged to file for trademark applications for registration of their brands under tags of "household hand sanitizers" and/or "alcohol-based antibacterial skin sanitizer gels" in class 5. There has been a rapid increase in the number of applications filed with the Controller General of Patents, Designs, and Trademarks (that falls under the Ministry of Commerce), for terms like ‘Corona Sanitizer,’ ‘Corona Safe,’ ‘COVID Sanjeevani,’ ‘COVID Relief’ and many more. There have even been other applications like the application for the mark ‘Corona Safe’ filed under Class 3 for ‘smoothing face masks’ and ‘cleaning masks for the face’, in addition to ‘hand cleaners’ and other goods. More bewildering is another application which is for the mark ‘Corona’ under Class 9, i.e., in respect of a computer anti-virus software.

However, various pharmaceutical companies have also sent their trademark applications in recent weeks as they are building vaccines and other medical products to fight the COVID-19 pandemic.

China has, in recent times, attempted to prevent the malicious filings of ‘COVID-19’ trademarks through its amended law. Even though we don’t have a stringent provision aimed at such marks in India, it is very much likely that those applications for corona/COVID related trademarks may stand to be rejected by the Registry under Section 9 of the Trade Marks Act, 1999 (‘Act’), which deals with absolute grounds of rejection for registration.

Section 9(1)(b) provides for the refusal of registration of marks “which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service.”

Some of the claims referred for registration under Class 5 brandish the use of the products being sold under the marks like ‘COVID-RELIEF’, ‘ANTI-CORONA’, ‘NOCORONA’ and ‘CORONA SAFE’. Such marks clearly fall within the wording of Section 9(1)(b) of the Act, as they are completely descriptive in nature.

Further, Section 9(2)(a) of the Act provides that “a mark shall not be registered as a trademark if it is of such nature as to deceive the public or cause confusion“. This provision aims to avert the registration of marks which may cause deception or scepticism among the public.

As of now, the best response that healthcare experts and governments have had to the virus is ‘social distancing’. In such times, when a cocktail of drugs are being tested with the hope of treating suffering patients, it is disappointing that certain proprietors have sought registration for marks like ‘COVID-RELIEF’, ‘NOCORONA’ and ‘DHL CORONAVIRUS PREVENTIVE’.

Now, any product bearing the name“COVID-19" or "Coronavirus” will become way too generic in nature because of the extremely wide use of these terms. The burden of proof lies on the proprietor to prove its acquired distinctiveness, which is unlikely, as the terms are only proposed to be useful and are currently not in use. Hence, the term cannot be provided legal sanctuary as a trademark.

With respect to already registered trademarks, there should be no problem if goods are offered under Class 5, as it concerns completely different products as compared to the “pre-existing Registered Trademarks”. A person of ordinary intelligence would not associate ‘Corona’, the mark is used for pharmaceuticals to that of the already existing mark for beer.

In these tough times, the Intellectual Property offices around the world should bring about regulations in order to protect the correct enforcement and registration criteria, as many companies, small or large, have extremely high tendencies to resort to immoral activities in order to gain profit. The economy and financial markets around the world are in threat to survive these difficult times, and there is a need for stringent rules and regulations, and their enforcement so that no baseless claims are used to take advantage of the vulnerabilities that exist in the society.