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- Trademark Litigation
In a country like India where religion is of paramount importance for the majority of its population, the usage of names of Gods, Goddesses, and religious texts and scriptures as trademarks can be sensitive. Although the same is not completely banned or prohibited from being used yet it depends largely on the nature of the goods/services.
In relation to that Section 9 of the Trademarks Act, 1999 contains absolute grounds of refusal for registration of the trademark. Section 9(2) reads as
“2) A mark shall not be registered as a trademark if—
(a) it is of such nature as to deceive the public or cause confusion;
(b) it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;
(c) it comprises or contains scandalous or obscene matter;
(d) its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950).”1
A matter of particular importance is sub-clause (b) which harbors the phrase “any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India.” This provision has been a subject of confusion and chaos in the Courts owing to the myriad questions it poses concerning what would amount to “affect religious susceptibilities”. The jurisprudence in this arena although not dense, is helpful in ascertaining the glaring loopholes in the approach of the Courts through the years.
In Mangalore Ganesh Beedi Works v. District Judge2, the Allahabad High Court dealt with the scope of “religious susceptibility” of a trademark by the name of “Ganesh Beedi”. The validity of the trademark was challenged considering the usage of the name of a deity in Hinduism accompanied by the term “beedi” hinting at cigarettes which are considered to be a “vice in Hinduism”. Further, the packets of such beedis were discarded in a dustbin after use which was contended to be disrespectful towards religious sentiments.
After hearing the parties, the Court struck a positive note in this jurisprudence by holding that the trademark was valid and that did not threaten to affect any religious sentiments negatively. While holding that the facts and evidence were not enough to prove that the usage of such trademark affects religious susceptibilities, the Court observed that “that whenever invitation cards of marriages or other ceremonies being performed by Hindu persons, photographs of God and goddesses are printed on these invitation cards and once the purpose of the cards is finished those cards also go to the dustbins, with them the photographs printed on them. Here also nobody’s feelings are hurt by saying that the photographs of God and goddesses are being thrown in dustbins along with other rubbish matters.”
However, in Bhole Baba Milk Food Industries Ltd. v. Parul Food Specialities Pvt Ltd3, the growing jurisprudence suffered a setback. The Delhi High Court while dealing with the question of the word “KRISHNA” acquiring secondary distinctiveness, held that there can be no monopoly over this word since the is associated with a deity. It observed that “the small font of the words, PARUL’S LORD with prominence to the word “KRISHNA” would disentitle the defendant to so sell its product and thus has rightly directed the defendant to print the words, PARUL’S LORD with the same prominence as the word “KRISHNA”. It has been correctly opined that dairy product sold under the mark “KRISHNA” would not be confused qua the source if the same product is sold under the mark “PARUL’S LORD KRISHNA” the distinctiveness to which the appellant can lay a claim as to what it has got registered as a whole and such registration cannot possibly give an exclusive statutory right to the appellant qua a particular word of common origin.”
Finally, the setback opined by the Delhi High Court was affirmed by the Supreme Court’s decision in Lal Babu Priyadarshi v. Amritpal Singh4. In this case, the Court had to decide on the validity of trademarks using the names of holy and religious books. The Appellant’s application for registration of the trademark of “RAMAYAN” with a crown on it was accepted by the Assistant Registrar while rejecting the Respondent’s contention that the same was prohibited under Section 9(2) of the Trademarks Act, 1999. Hence, through the course of appeals, the case came to the Supreme Court for adjudication. The Apex Court held that names of holy books cannot be used as trademarks. Further, it also observed that addition of prefix or suffix to the same would result in demeaning it since “the length of the word RAMAYAN may lose its significance as a religious book and it make be considered for registration as a trademark”. It also observed that “the word “RAMAYAN” represents the title of a book written by Maharishi Valmiki and is considered to be a religious book of the Hindus in our country. Thus, using the exclusive name of the book “RAMAYAN”, to getting it registered as a trademark for any commodity could not be permissible under the Act. If any other word is added as suffix or prefix to the word “RAMAYAN” and the alphabets or design or length of the words are same as of the word “RAMAYAN” then the word “RAMAYAN” may lose its significance as a religious book and it may be considered for registration as a trade mark. However, in the present case, we find that the appellant had applied for registration of the word “RAMAYAN” as a trade mark. We also find that in the photographs, after adding “OM’s” to the word “RAMAYAN”, at the top and in-between “OM’s” and “RAMAYAN”, the sentence, “Three Top Class Aromatic Fragrance”, is also written. Thus, it is not a case that the appellant is seeking the registration of the word “OM’s RAMAYAN” as a trade mark. Further, from the photographs, we find that the photographs of Lord Rama, Sita, and Lakshman are also shown in the label which is a clear indication that the appellant is taking advantage of the Gods and Goddesses which is otherwise not permitted.”
This line of reasoning was also carried forward in the recent judgment of the Bombay High Court in Freudenberg Gala Household Product Pvt. Ltd. v. GEBI Products Ltd5, where the reiterating Supreme Court’s previous approach held that the names of the deities are not exclusive and hence, no one can exercise a monopoly over it.
POINTS OF CRITIQUE
Analyzing the above discussion, it is clear that the jurisprudence in this arena which started on a positive note has been essentially given the wrong turn by the Court’s narrow approach. This raises two points of critique concerning the interpretation of “religious susceptibility” and the lack of parameters for ascertaining the same.
The contours of religious susceptibility: The Courts have inherently included the names of deities and holy books to be amounting to hurt “religious susceptibilities” prescribed under Section 9(2) of the Act. The phrase in the provision only hints at situations “likely to hurt religious susceptibilities” and nowhere hints at a blanket ban on the usage of the names of deities or holy books. The dicta given by the Courts also emphasize that such names cannot be used even with the addition of prefixes or suffixes. This essentially creates a pool of more than 30 crore names which are prohibited from being used as trademarks. India is a diverse country, houses a myriad of religions. Alone Hinduism has over 30 crore Gods and Goddesses. In view of the same, the addition of the names of other religious figures from other religions would result in an astronomical figure of names that cannot be used as trademarks. The Courts in prohibiting the use of such names have prima facie assumed that the mere usage of the name of any deity or holy book is bound to hurt the “religious susceptibilities”. Such assumption has been carried forward without any base or foundation supporting it.
Guiding lights: The phrase “likely to hurt religious susceptibilities” couched in Section 9(2) of the Act requires parameters for appropriate interpretation. The Courts while adjudicating matters revolving around the same have never delved into churning out parameters that could be employed to determine what amounts to “religious susceptibilities” and what is likely to hurt the same. In absence of the same, the Courts have been blindly indulging in prohibiting the registration of a trademark that possesses the name of any deity or holy book resulting in a wrong interpretation of the provisions which interferes with the rights of the parties.
The registration of trademarks that use names of deities or holy books is prohibited owing to its developing jurisprudence. This creates major issues whereby numerous names would be allowed to enjoy “exclusivity” by virtue of affecting “religious susceptibilities”. In such scenarios, it is important to ascertain how far the argument of hurting “religious susceptibilities” can be stretched and what all other names can fall under its purview. Would it cover the names of the characters and objects covered in the mythological books and scriptures? If that would be the case, then it would end up limiting the availability of names to a great extent.
In order to cure this evil, it is of paramount importance that Courts devise parameters and tests for determining the impact on religious susceptibilities. In this regard, the legislature can also intervene to bring some clarity to the phrase “likely to hurt religious susceptibilities” thereby eliminating the narrow approach adopted by the Courts in interpreting it.
Author: Anubhav Mishra, a Fourth Year student of BA LLB (Hons.) from MNLU (Aurangabad) an intern at Khurana And Khurana, IP Attorney and Advocates. In case of any queries please contact/write back to us at firstname.lastname@example.org.