Trademark

Religion and IP: The tales of Tirupati, Attukal and Osho


This blog has been the forum for considerable debate surrounding the protection of religious and spiritual symbols, including those related to Yoga, and the Tirupati laddu GI.

The latter, for instance, most recently re-appeared on the scene with the Hindu reporting that “The Tirupati laddu … may soon get intellectual property rights (IPR) as the managing trust of the temple is seeking geographical exclusivity for the delicacy. The Tirumala Tirupati Devasthanams (TTD), a trust which manages the world’s richest temple — Tirumala Venkateswara Temple — at Tirumala in Andhra Pradesh, has submitted an application before the Geographical Indication Registry seeking the GI tag.”

This is probably the first time that a product of spiritual connotation will be acquiring GI status, and has its fair share of critics, who question the necessity of appropriating such symbols, as well as the economic motives behind such moves.

Tirupati laddus may have set some sort of precedent, whether desirable or not is a moot point, but there is another religious symbol that has been added to the list – the pictorial representation of the deity of Attukal in Kerala.

A short unobtrusive report appeared in the Hindu some days ago, with a dateline from Trivandrum, Kerala, stating that “The Attukal Bhagawathy Temple here has secured trademark protection for the picture of the deity and its claim to the title ‘Sabarimala of Women.’ Office-bearers of the trust said… that the certificates issued by the trademarks registry under the Union government would help to prevent unauthorised use of the picture and title.”

This story was flagged by R Praveen Raj, a regular SpicyIP commentator, who has raised the issue with leading policymakers of the state and the country already, highlighting several points relating to the grant of the mark that warrant attention.

For instance, a fundamental question that emerges is whether the pictoral representation of the deity ought to be regarded as a subject of trademark at all or not. A literal reading of the Act would suggest that there is nothing preventing such an application, although there have been raised questions about Section 9(2)(b) of the Trade Marks Act 1999, which deals with Absolute grounds for refusal of registration. This section says that a mark shall not be registered as a trade mark if it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India. It would be interesting to know how the examiners evaluated the trade mark under this section.

A secondary question relates to the status of the Trust – According to the Indian Trademark Journal (large PDF file), the Attukal Bhagavathy Temple Trust has claimed the mark under Class 42 of the Fourth Schedule of the Trademark Rules 2002 (which deals with Classification of Goods and Services – Name of the Classes), classified as ‘Temple Services, Social Services, Welfare Services and Cultural Activities’. In doing so, the Registry appears to have chosen to interpret “Temple services, etc” under S. 2(1)(z) as a “service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters…”. By extension, the question that one is tempted to ask is – can the Trust’s operations, referred to here as “Temple Services etc” qualify to be services in connection with business of any industrial or commercial activities?

Yet another issue is of deceptive similarity. The Attukal temple is dedicated to Kannagi, a legendary figure from the Tamil epic the Silappathikaram, and the trademarked picture is a graphic visualisation of Kannagi. Hindu polytheism is not my forte, but I am aware that Kannagi is the resident/guardian deity of the city of Madurai, and that she is also worshipped at the Kodungallur temple , also in Kerala. I am not aware of the representations of these idols/deities, but its is very possible that they bear a resemblance to the trade marked image.

Is there ominous similarity with the GI for Tirupati Laddoos story? Is this going to get mainstreamed in India in the years to come? Open for your thoughts.

The last word ought to go, perhaps, to a decision of the National Arbitration Forum (NAF) in a domain name dispute containing references to the spiritual leader Osho. The complaint was instituted by an organisation that claimed exclusive trademark rights to the name ‘Osho’, believing the respondent (a spiritual organisation that also followed Osho’s precepts) to be violating its rights. The 2000 decision, which is available here, was extremely critical of the complainant, and said:

“To grant Complainant’s request for relief would be to permit virtual monopolization on the Internet by Complainant of any domain name which includes the name of a great spiritual teacher and leader. While making no judgment on the relative merits or validity of the world’s religions or spiritual movements or any leader thereof, this Arbitrator finds that permitting this would be as improper as doing the same with Christianity, Judaism, Islam, Zorastrianism, Hinduism, Buddhism, Taoism, Confucianism, Shintoism or any of the several hundred other of the world’s religions and/or spiritual movements.”

21 comments.

  1. AvatarR S PRAVEEN RAJ

    Thanks to Spicy IP for a wonderful POST highlighting the IPR issues associated with GI on Tiruappathi Laddu and TM on the picture of Attukal deity. I have been campaigning for the last two weeks on the issue of TM on deity. I wrote to Kerala Chief Minister twice inviting the attention of his Government to the matter (in the light of Kerala IPR Policy), besides bringing it to the notice of Controller General of Patents, Designs & Trademarks (though I doubt whether he has any suo moto powers for revocation of a granted TM). Let me post below My second Letter to Kerala Chief Minister.

    Subject: Trademark on the picture of “attukal deity” is a serious prejudice to religious freedom

    From,

    R.S. Praveen Raj
    Scientist – IP Management & Technology Transfer
    NIIST, Thiruvananthapuram – 19

    To,

    The Chief Minister, Govt. of Kerala

    Sir,

    In continuation to my previous letter to you requesting the intervention of Govt. of Kerala in getting the Trademark on the “picture attukal deity” revoked, let me invite your kind attention once again to the seriousness of the matter.

    The continuance of the “picture of attukal deity” as a registered trademark, would eventually lead to communal/religious tensions and serious mishaps. page 3583 of Trade Mark Journal No. 1388, Regular March 16, 2008 shows that the picture of deity has been registered as such (per se). This is the picture of deity being worshipped by Lakhs of her devotees. It means that temple trust has taken Trademark on a “common”, for which even the copyright is not eligible.

    If the trademark on the picture of attukal deity is not revoked, it would pass a wrong message to the public that “commons” also can be appropriated for business purposes. In future, we may see trademark applications being granted on many of the pictures of reverence including asoka chakra, election symbols of political parties etc., given the casual nature of dealing the trademark applications in Trademark registry.

    There are mainly two dangers involved in the present Trademark on Deity.

    1) There may be many roadside vendors using the picture of attukal deity in their products (many times as a reverence to the deity and not essentially by commercial interest). Attukal temple trust would threaten them in the name of Trademark certification. No need to say that it would result in religious tensions.

    Section 28 (1) of the TM Act says (Rights conferred by registration)

    Subject to the other provisions of this Act, the registration of a trade mark shall, if valid, give to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods or services in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by this Act.

    2) If the this picture continues to be registered and another person (can be from some other religion also), may apply for a Trademark by modifying any part of the picture with some other expressions which are not auspicious. As per law, trademark registry will have to grant a trademark on that, as it would be “distinctive” and “not deceptive” (lawyers will easily prove it).

    Trade Mark registry has already dispensed with the requirement of Section 9(2)(b) of TM Act, 1999 by the grant of Trademark on attukal deity. Bombay High Court in 1999, made it clear that commercial exploitation of object of reverence/worship is not a crime under IPC Section 295.

    Government will be helpless if the religious tension builds up by the commercialisaton attempts of the trademark holder. That is why the grant of Trademark on the picture of attukal deity is a serious prejudice to aticle 25, 26 of Indian Constitution.

    Section 2(1) (zb) of Trademarks Act defines “trade mark” 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 shape of goods, their packaging and combination of colours. In principle, “pictures are not registrable as such” for a trademark, while graphical representation acting as a “mark” (but including combination of colours is permitted). Unfortunately Trademark registry has made a practice of granting trademark on pictures also, it seems.

    But the most dangerous flaw from the part of Trade marks registry is the negligence shown to clause (b) of Section 9 (2) of TM Act. Section 9 (2) (b) says – A Mark shall not be registered as a trade mark if it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;

    Please refer to the definition of “goods”, “services” and “trademark” [They are all defined in relation to trade]. In abstract, Trademark Act is intended only for the purpose of protecting marks (or symbols) which are used for Trade and Commerce. Maintenance of a trademark on the picture of deity by the Temple trust would pass a message that temples are origin of trade and commerce. If it goes unopposed appropriation of religious symbols would become a practice, and would be misused by others.

    Might be that the temple trust has taken a TM because of ignorance. But from the Government angle it is to be viewed seriously, as the act of the trust prejudices the religious freedom promised by the Constitution. Above all, the declared policy of your Government (as per IPR Policy of Kerala, 2008) is the prevention of misappropriation of commons. Picture of deity is a COMMON. The IPR route adopted by the temple trust is against the declared policy of your Government.

    Kerala Government may kindly take urgent measures to get the Trademark (on the picture of attukal deity) revoked. Let me mark a copy of this Letter to Controller General of Patents, Designs and Trademarks, Govt. of India for his information.

    Thanking you in anticipation,

    Yours faithfully,

    R.S. Praveen Raj

    Reply
  2. AvatarDivs

    Hi Sumathi,

    To me there seems no similarity in the two cases.

    a) The kind of IP protection itself is different. While GI protection is to preserve the economic benefit accruing to a class/segment of people hailing from a region, a TM is restricted to an individual legal entity to protect his and alone his mark, reputation and everything that comes along with it.

    b) When we talk of a GI for Tirupatti Laddu.. it is basically a protection for a certain recipe and to prevent any body else from selling/passing off any other laddu as Tirupati laddu. Also, it is to further the proceeds of a trust which actually holds, uses and protects the IP in that particular recipe.

    On the contrary.. the image of the Devi was the IP of someone who may not be traceable today.. and the trust is merely custodian to something which is actually in Public domain. The image/idol is not the IP of the trust and the statute is merely the property of the trust.. registering this as a TM is not called for.. IMHO.

    Although the idol may be the attraction or USP for the temple, but IMHO (and with due respect to Culture, tradition and faith) the people visiting the temple do service to the temple.. rather than the idol doing so… OFc.. the slightly religious me does say that God Believes in quid-pro-quo!

    Further, there are thousands of temples in India of Hanuman, Ganapathy, Krishna etc. What will happen if each of them approach the registry???

    Reply
  3. Avatardavid55

    Sir,
    I have noticed the details regarding the Trade mark granted for a diety. It is a great mistake done by the Patent authority. Why nobody protested against at Patent authority? Is it possible now to protest. Any how it is very admirable the action taken by Praveen Raj. The whole social active people should support him.

    Regards,
    M.C.DAVID

    Reply
  4. Avatarprem

    Recently, US Trademark Trials and Appeal Board, part of the United States Patent and Trademark Office (USPTO), an agency of the United States government on 13 January 2009, has established that “Osho” cannot be trademarked. In response to the opposition lodged by Osho Friends International (OFI) India, an association of Osho Meditation Centres and Osho lovers, against Osho International Foundation (OIF) Zurich, the Appeal Board ruled that Osho’s name is used to describe the teachings and meditation techniques of the mystic Osho and the spiritual and meditative movement that grew up around him. Since “Osho” does not identify only one Osho group as the source, it cannot serve as a trade mark owned by Osho International Foundation. As a result defendant OIF can not foreclose others from utilizing the term Osho.

    The Board has cancelled all trademark registrations and applications filed by the Zurich entity that were challenged by Osho Friends.

    Soon after “Osho”, the mystic formerly known as Bhagwan Shree Rajneesh, left His body in 1990 Osho International Foundation (OIF) Zurich, started to register the name Osho and His Meditations as trade marks in the USA. Friends alleged that OIF attempted to hijack control of the meditative and spiritual teachings of Osho and his movement.
    Osho Friends is based in New Delhi and has fought for over 10 years in the courts of US Trademark & Patent Office to make Osho and His meditations available to humanity. You can find detailed information about the Osho trademark case at http://www.oshofriendsinternational.com

    Reply
  5. Avatarprem

    Recently, US Trademark Trials and Appeal Board, part of the United States Patent and Trademark Office (USPTO), an agency of the United States government on 13 January 2009, has established that “Osho” cannot be trademarked. In response to the opposition lodged by Osho Friends International (OFI) India, an association of Osho Meditation Centres and Osho lovers, against Osho International Foundation (OIF) Zurich, the Appeal Board ruled that Osho’s name is used to describe the teachings and meditation techniques of the mystic Osho and the spiritual and meditative movement that grew up around him. Since “Osho” does not identify only one Osho group as the source, it cannot serve as a trade mark owned by Osho International Foundation. As a result defendant OIF can not foreclose others from utilizing the term Osho.

    The Board has cancelled all trademark registrations and applications filed by the Zurich entity that were challenged by Osho Friends.

    Soon after “Osho”, the mystic formerly known as Bhagwan Shree Rajneesh, left His body in 1990 Osho International Foundation (OIF) Zurich, started to register the name Osho and His Meditations as trade marks in the USA. Friends alleged that OIF attempted to hijack control of the meditative and spiritual teachings of Osho and his movement.
    Osho Friends is based in New Delhi and has fought for over 10 years in the courts of US Trademark & Patent Office to make Osho and His meditations available to humanity. You can find detailed information about the Osho trademark case at http://www.oshofriendsinternational.com

    Reply
  6. AvatarDrNNPanicker

    TRIPS To Temple Trade:
    Trade and Trademark in Faith Symbols

    Dr. N. N. Panicker
    [email protected]

    We are witnessing crass commercialism creeping into various activities of our people. Such commercialism is objectionable even in business ethics and enlightened management practice as it is counterproductive in the long run. In particular, the exclusivist rent-seeking trend in the claim of intellectual property rights is harmful in a developing economy, as it does not promote productivity and innovation. Furthermore, we are dipping to the nadir when temples start claiming intellectual property rights to the deities and offerings.

    Tirupati laddu.
    The latest example is the Intellectual Property Rights (IPR) sought for the Tirupati laddu, the sweet offering, prasadam, of the Tirumala Venkateswara Temple by the temple trust, vide the Hindu, 2009 March 16. The Tirumala Tirupati Devasthanams (TTD), which manages the world’s richest temple, has submitted an application before the Geographical Indication Registry seeking the GI tag for geographical exclusivity for the temple offering.

    As per the GI act, a person caught infringing a registered GI is liable for imprisonment of 6 months to 3 years apart from fine which may vary from a minimum of Rs.50,000/- to a maximum of Rs. 2 lakhs. Incidentally, the GI registry is currently processing the application for Bydagi chilly. In contrast to Tirupati laddu, a fake Bydagi chilly in the market is affecting the interests of farmers from Karnataka as the chilly variety commands huge premium in the international market.

    TTD is reported to have an approved annual budget of Rs1,925 crore for 2008-09, projecting a revenue of Rs. 40 crores from the sale of the laddus. Obviously it is not in any financial hardship to justify the action unbecoming of its divine grace, to seek protection claiming intellectual property rights on the laddus.

    Attukal Deity.
    It is reported that Attukal Temple Trust has claimed exclusive right to the temple deity’s picture and “Women’s Sabarimala” appellation, vide Indian Trademark Journal no.1388 (Regular), 2008 March 16, p. 3583. Accordingly, Attukal Bhagavathy temple trust claims the entitlement of the picture of the deity “as such”. This certification given as a trademark, originally intended for commercial advantage, seems to be inappropriate as it is dangerous and objectionable to have religious symbols appropriated for business.

    There is no valid justification for seeking intellectual property rights by the two temple trusts. With prosperity we expect magnanimity, especially where divine grace so amply visible. If the trusts see a problem of misuse of the faith symbols, it should be solved to the extent appropriate by administrative action, rather than through a legalistic approach that can lead to problems in the future. The rule, Buyer Beware (caveat emptor), should be enough in both cases with the known degree of risks involved. Commercialism masquerading with hypocrisy would not help our temples or culture.

    Temple for Trade?
    “Trademark is used in the course of Trade,” according to the Trademark Act, 1999 Section 2(1.e.) under Definitions and Interpretations. It also says: “‘certification of trademark’ means a mark capable of distinguishing the goods or services in connection with which it is used in the course of trade which are certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics from goods or services not so certified”. ‘TM’ marking is to be made on the pictures used in worshipping! This is to indicate the source of manufacture or trade origin of the goods or services and hence to protect the ‘goodwill’ of the undertaking. Will it not be inappropriate for the Attukal Bhagawathy temple or the Tirupati temple to call itself a business undertaking and proprietors of a trade? Is it not dishonourable to claim that the Temple Trust is trading in the picture of the deity as a monopoly and that the economic “good will” protected by the trademark is for letting an object and a place of worship as a “service”? Will it not lead to unending law suits between temples, and between temples and commercial undertakings? Will it not be disgraceful? All this is for what gain? I trust the Trust will see the deep and far-reaching implications and retrace the steps to its rightful place to deserve divine grace with a charitable attitude. Without such ‘protection’ the temple had already got the recognition for drawing the largest assembly of women devotees from the Guinness Book of World Records. This year it was reported that 25 lakh women assembled on the Ponkala day of March 10. The Tirupati temple also remains the richest without such protection.

    TRIPS tripping our balance.
    The cause of this unbelievable fall in our values can be traced to the Trade Related Intellectual Property Rights regime (TRIPS) imposed by the World Trade Organization (WTO). That, in turn, was the result of the aggressive posture taken by developed countries in the General Agreement on Tariffs and Trade (GATT) negotiations in the early 1990’s to retain their advantages of earlier start. That posture was objected to because it would be used for holding the handicap and extending the exploitation of the developing countries. Patents, trademarks and other intellectual properties sought to be protected by exclusive provisions of TRIPS were pointed out as unfair to the underdogs. They would be benefiting only the parasitic ‘rent-seekers’ and not the creators. In my article, “India and the Dunkel Proposals” and presentation at the Kerala Science Congress in Thrissur in 1992, the unfair exploitation implied was exposed. The objection was based on my experience as an inventor with 15 international patents and understanding from participation in an international patent committee. What was feared has become real. It has also led to conflicts and expensive litigation by countries like India. It led to desperation to others that cannot afford to fight.

    Reply
  7. AvatarPrasanth S

    It is alarming that the trademarks registry had failed to see the big picture, when they jumped the gun and issued trademark on Attukal deity. By doing so, they had started a dangerous precedent that other money spinning religious trusts would also soon exploit for their own commercial gains. What is more bemusing is that the State government of Kerala, led by the Communist Party, till date has not made any comments on this slippery issue, leave alone making any attempts at revoking the trademark granted.

    Thanks to Praveen Raj for presenting a detailed picture of the said trademark issue for the readers. Kudos to him for an inner page news snippet in ‘The Hindu’, that would have easily gone down as just another news on any other day, had become a subject of debate, at least amongst the knowledgeable IPR experts in this country, and few like minded people. This contentious issue has also been reported in the Malayalam edition of Sunday Indian.

    Reply
  8. AvatarPrasanth S

    It is alarming that the trademarks registry had failed to see the big picture, when they jumped the gun and issued trademark on Attukal deity. By doing so, they had started a dangerous precedent that other money spinning religious trusts would also soon exploit for their own commercial gains. What is more bemusing is that the State government of Kerala, led by the Communist Party, till date has not made any comments on this slippery issue, leave alone making any attempts at revoking the trademark granted.

    Thanks to Praveen Raj for presenting a detailed picture of the said trademark issue for the readers. Kudos to him for an inner page news snippet in ‘The Hindu’, that would have easily gone down as just another news on any other day, had become a subject of debate, at least amongst the knowledgeable IPR experts in this country, and few like minded people. This contentious issue has also been reported in the Malayalam edition of Sunday Indian.

    Reply
  9. AvatarR S PRAVEEN RAJ

    To reflect the seriousness of the TM issue let me post below an interesting news item appeared in Monday September 13, 1999 in Indian Express

    http://www.expressindia.com/news/ie/daily/19990913/ige13087.html

    CONTENTS

    Ganesh trademark on beedi pouches is okay, rules HC

    Sumedha Raikar-Mhatre

    MUMBAI, September 12: Can the pictures of Lord Ganesha on beedi pouches amount to an insult of the Hindu religion? No, observes Justice S S Parkar of the Bombay High Court who has ruled that Mangalore Ganesh Beedi Works, Mysore, cannot be punished under the Indian Penal Code for commercial use of the deity.
    Maulana Ayyub Kadri, a Pune-based social worker filed a criminal complaint against the beedi-manufacturing company. According to Kadri, “who, though a Muslim, respects other religions,” the company should be punished under Section 295 of the Indian Penal Code due to the commercial use of Lord Ganesh. The case, heard before a magistrate in Pune, was filed not only against the company but also its Pune-based distributor K R Mallya. Mallya approached the High Court for quashing of the lower court proceedings.

    Justice Parkar has observed that use of the deity’s pictures on the pouches does not constitute an offence because there is no intention to insult a place of worship, neither has the companydamaged/defiled an object of religious worship.

    The company has been manufacturing beedis since the year 1932, and their Ganesh trademark was registered since 1942 under the Trade and Merchandise Marks Act. As per provisions of the Act, symbols/marks which hurt the religious susceptibilities of any class of citizens cannot be registered as trademarks. Before finalising the trademark, the registrar calls for objections.

    Moreover, the Central government is further empowered to direct the registrar not to register a particular trademark. And even after registration is granted, objections can be raised before a tribunal.

    Therefore, the judge observed, since the Ganesh trademark is being used for the last six decades without objections, a criminal complaint at this stage cannot be entertained. Moreover, the complainant can approach the registrar under the Trade and Merchandise Marks Act, if he still has any grievance.

    According to the complainant, the beedi pouches are likely to be thrown on publicstreets, which will then be trampled upon by passersby. However, the judge observed that even if the pouches are thrown on the street, it does not constitute deliberate defilement of the picture of Lord Ganesha.

    Earlier in 1987, the same company had been dragged to the Madras High Court. The beedi label was challenged by a Hindu citizen. He stated that an object of reverence should not be allowed as a commercial trademark. But the Madras High Court had also not entertained the objection. Justice Parkar has stated that even if one assumes commercial exploitation of the object of worship, it does not bring the case within the four corners of IPC.

    Copyright © 1999 Indian Express Newspapers (Bombay) Ltd.

    Reply
  10. AvatarR S PRAVEEN RAJ

    The most worrying factor in this TM issue is the negligence shown by the “Fourth estate”. All the Press and Media establishments in Kerala were reminded many times that “the private appropriation” of “religious symbols” is a serious prejudice to the religious harmony of the country. The Letters were in such a simple language that they could understand it very well. Please find below the contents of my Email to the press and media on 14th March 2009.

    Indian Penal Code toothless to punish commercial exploitation of object of worship

    I just came across this interesting news item appeared in Indian Express in 1999

    http://www.expressindia.com/news/ie/daily/19990913/ige13087.html

    The following remarks of the Bombay High Court point to my argument (serious prejudice to article 25 and article 26 of Indian Constitution if religious symbols are allowed for private appropriation)

    1) Ganesh Beedi Works, Mysore, cannot be punished under section 295 of the Indian Penal Code for commercial use of the deity.

    [Section 295 – Injuring or defiling place of worship with intent to insult the religion of any class – Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowldge that any class of persons is likely to consider such destruction,damage or defilement as an insult to their religion, shall be punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both]

    2) Justice Parkar has observed that use of the deity’s pictures on the pouches does not constitute an offence because there is no intention to insult a place of worship, neither has the company damaged/defiled an object of religious worship.

    3) The company has been manufacturing beedis since the year 1932, and their Ganesh trademark was registered since 1942 under the Trade and Merchandise Marks Act.

    4) Therefore, the judge observed, since the Ganesh trademark is being used for the last six decades without objections, a criminal complaint at this stage cannot be entertained. Moreover, the complainant can approach the registrar under the Trade and Merchandise Marks Act, if he still has any grievance.

    5) According to the complainant, the beedi pouches are likely to be thrown on public streets, which will then be trampled upon by passersby. However, the judge observed that even if the pouches are thrown on the street, it does not constitute deliberate defilement of the picture of Lord Ganesha.

    6) The beedi label was also challenged by a Hindu citizen in Madras High Court in 1987. He stated that an object of reverence should not be allowed as a commercial trademark. But the Madras High Court had also not entertained the objection.

    7) Justice Parkar has stated that even if one assumes commercial exploitation of the object of worship, it does not bring the case within the four corners of IPC.

    It leaves the following questions on serious prejudice to religious freedom, faith and belief

    a) Is it that the Trade mark registry Officials have no intelligence to understand the wisdom of law makers in inserting clause (b) in section 9 (2) of Trade Marks Act, 1999 ?

    Section 9(2)(b) – A mark shall not be registered as a trade mark if it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India

    b) Is it not necessary that all those trade marks granted by TM registry and susceptible to religious faiths be cancelled in greater public interest and with reference to article 25 and article 26 of Indian Constitution ?

    c) Would the appropriation of a COMMON (The act is MONOPOLY in abstract) as a TRADE Symbol prevent its misuse or Does it increases the vulnerability to dangerous practices of Trading (especially when it relates to faith and religion) ?

    http://www.thehindu.com/2009/03/09/stories/2009030954340300.htm

    d) Would the Trade Mark Registry be capable of to deny registration to a moderately modified form of a religious symbol appearing in trade mark register if it is sufficiently justified by the lawyers as distinctive and non-deceptive, while such symbol can spur religious issues at a later stage. Would the worshippers (who hails the initiatives and precedence created by attukal temple trust) accept it as genuine if the second appropriation is done by a foreigner ?

    e) Above all, could any body predict the consequences and damages to communal harmony if such a religious symbol appropriated as a trademark happens to appear in such a place or in such a product that is not apt.

    f) What would be the aftermaths of such an occurrence as above and the owner of trademark is from another religion ? Unfortunately, there are no provisions in Indian Penal Code for the unethical commercial exploitation of object of worship, as the court says

    Of late, a Trademark on the deity taken by the Temple trust passes a message that the “places of worship” are “business outfits” or “origin of trade and commerce”.

    Interestingly, the judgment of Bombay High court points out that the aggrieved person should have preferred request for cancellation of TM. But it is shocking to observe that Section 57 of TM Act mandates the applicant to go through a number of procedures after paying Rs. 3000 (and Form TM – 26), even when protection of “public interest” (and “not commercial interest”) is urged.

    Should the Public pay the penalty for a mistake done by the Trade Mark Registry in understanding of Section 9 of the TM Act ? I also doubt whether there is any provision in Trade Mark Act, 1999 conferring “suo moto” powers to the Controller General for cancelling a trade mark registration.

    The only solution is a “BIG NO” to private appropriation of religious symbols

    “Let us nip this unhealthy trend in the bud”

    Regards,

    R.S. Praveen Raj

    Reply
  11. AvatarSumathi Chandrashekaran

    Thank you to all of you for your comments.
    #Divs: in speculating about the similarity between the Tirupati laddu GI and the Attukal deity trademark, I was not referring to the types of IP being protected, but thanks for making that clear.

    I was instead trying to allude to the fact that in both cases, it is the temple trust that has moved application for ownership, which draws attention to the motives of the trusts. Again, in both cases, there is a logic to the application – just as you justify TTD applying for the GI in the laddu, the Attukal trust and the trademark registry believe the former’s services to legitimately fall under the purview of the act.

    As in so many other cases, what is being questioned here is the principle of equating the functioning of a temple trust with that of a business. This is a moot question – some believe in granting sanctitude to religious institutions, by virtue of being custodians of god; others believe they are nothing but lucrative business enterprises, and are therefore entitled to ensure that their books run into a surplus. It’s a matter of how one interprets it.

    What do you think?

    #prem
    thanks for the note on the Osho decision. A detailed post on this is on the cards.

    #praveen, #DrNNPanicker, #prasanth, # david55: thanks for your comments. I look forward to seeing if there are any developments on this, and how, if at all, things pan out.

    cheers
    sumathi

    Reply
  12. AvatarR S PRAVEEN RAJ

    GI is supposed to act as an appellation or indicator of the geographical origin of the “product”. It implies that anyone from TIRUPPATI shall have the right to use GI on “Tiruppati Laddu”, if they claim that specific qualities of tiruppati laddu are met in their product and are “produced” from Tiruppati. Will the trust accept all those “claimants” as their members ? Then we should appreciate the greatness of the temple trust, the “official laddu makers”.

    Tiruppathi temple trust might have applied for GI under a false impression that they would get a “monoply” on “tiruppati laddu”. But I will be interested to know what does CGPDTM wish to convey by his message that tiruppathi laddu is likely to get GI.

    “monopoly” is an alien to “democracy”. However “exclusive rights” for the “products of creative mind” are being allowed as Intellectual Property Rights with reasonable restrictions, only because it is essential for industrial growth. In that sense it is to be doubted whether GI is a kind of IPR.

    I’m very much worried about the future of my country. Every legislation is being misused by greedy people.

    Reply
  13. AvatarLeks

    It is disquieting that the trademarks registry had issued trademark on Attukal deity.
    It seems that the current inclination is towards authorization of malpractices; though malpractice in the name of religion is universal now a days our country is also on track to bestow authorization to such practices?….. Lawyers also had enough skills to legalize these kinds of practices as what happened in Ganesh Beedi case.
    People are attempting to trade in the name of spiritual things even though commercialization takes it away from true meaning. We have to nip it off from the bud.

    I appreciate the efforts taken by Mr Praveen Raj for the cancellation of registration of TM on ‘Attukal deity’ and also his efforts for social welfare.
    Thanks to Spicy ip for bringing this dubious issue to the attention of bloggers and forming a platform for discussion.

    Reply
  14. AvatarLaurent Gaberell

    Congratulations Sumathi for this great and interesting post and to Praveen raj for having taken the initiative to write to the Kerala’s government! I really hope they will reconsider this decision because it could really be a dangerous and preoccupying precedent. Moreover, for a government like Kerala that aimed to be at the fore front of the struggle against the enclosure of the commons, its quite a bad beginning to promote the enclosure of such an important cultural and religious symbol.

    Reply
  15. AvatarDivs

    Hi sumathi,

    My opinion is that temple trusts in some way are in the nature of business enterprises.. their business being the lawful custodian of the temple, deity, the proceeds acquired from the service performed and so on… however, in their attempt to run their books of account, I feel that something which is infact the property of commons should not be claimed upon in their endeavour. I guess this is the attempt made by TM applicants for Attukal.. stretching their role.. IMHO a bit too far!!!

    Cheers!!!

    Reply
  16. AvatarR S PRAVEEN RAJ

    The point made by Divs is interesting. If the temple trust agrees to be accepted as “business enterprises”, then it is a good option for the Government to go for service taxes. Tax exemption in any form need not be extended to such trusts. They may be asked to register under Companies Act (and not as a Society or trust). It will be a great source of revenue for the Government if services offered by temple are brought under taxable services.

    Reply
  17. AvatarRukmini

    A temple offers spiritual services often on commercial considerations. When a picture of a Goddess is trademarked by a particular temple then others are permitted to use the trademark temple only on payment of a consideration. Sivakasi Fireworks uses a pantheon of Goda and Goddesses to showcase its products all without any pretensioons to trademark protection. In my opinion the trademark authority of India has committed a blunder by issuing trademark protection of the deity to the temple trust and it must rescind its decision at the earliest.

    Reply
  18. AvatarR S PRAVEEN RAJ

    The matter of Deity Trademark is now under the consideration of Kerala High Court. The Temple trust defends their right to patent the deity (See this IANS News)

    Kerala temple to defend patenting of deity

    Thiruvananthapuram, May 26 (IANS) Authorities at the Attukal Devi temple here Tuesday said they will legally defend their right to patent the temple deity and also its title “Sabarimala of Women”, a day after the Kerala High Court registered a case against the granting of trade mark certificates to the shrine.

    A division bench Monday listed the Attukal Devi Trust as a respondent in the case registered on a letter faxed to the high court by R.S. Praveen Raj, a 30-year-old scientist in National Institute for Interdisciplinary Science and Technology.

    The temple trust in March this year got the certification of trademark on the picture of Attukal deity and the title.

    In the letter, Raj has alleged that patenting of the deity and the temple name means that these were business projects and not in tune with religious spirit.

    “The most objectionable area in this matter is the ill logic of having trademark in faith symbols. Moreover, trademark certification, originally intended for commercial advantage, is quite inappropriate for religious symbols, as it passes a wrong message to the public that a place of worship also is a ‘business outfit’ or ‘origin of trade and commerce’,” he said.

    An official of the temple board said they were yet to get the papers from the high court.

    “We have no other option but to seek legal recourse and we will do that. We are waiting for the papers to come… we will meet our legal experts and take up the issue,” said the official pleading anonymity.

    One of the ancient temples of south India and popularly known as “Sabarimala of Women”, Attukal temple is situated in the heart of the city. Over the years, the number of women attending the annual festival that takes place in the first week of March has crossed three million.

    Reply
  19. AvatarR S PRAVEEN RAJ

    Controller General of Patents, Designs & Trademarks filed, on 2nd december 2009, their counter affidavit before Kerala High Court in the above ‘suo motu’ case

    The affidavit, openly justifies the temple trust in securing Trademark protection for the deity picture.

    Some of the interesting statements in the affidavit

    A) Trade Marks Act, 1999 does not prohibit or restrict the registration of marks that contains the picture of deities.

    B) The Registry did not lack in wisdom to consider whether the marks in issue would affect the religious susceptibilities of any class or section of the citizens of India. The registry only when it has got satisfied itself that the marks in issue does not conflict with the provisions of Section 9(2)(b) of the Trade Marks Act, accepted the application for registration of the marks concerned.

    C) All along in the history of trademark registrations, one can find several registration of marks that contain the pictures or names of the principal deities belonging to various well known temples.

    D) Why the trustees of a temple should not protect its property whether corporeal or incorporeal ? The misuse of the picture of the deity for any purpose will tarnish the reputation of the temple. The registration of the picture of the deity or a name is to prevent fraudulent use of them by unauthorized persons. It is similar to a fencing to a piece of land or a door to a building. No reasonable man would say that a temple property or an idol be kept open and uncontrolled to enable others to use and misuse.

    E) No where in the Trade Marks Act, it is said that a Temple Trust should not carry on business for profit or that it should not get its name or the pictures of the deity be registered as a trademark.

    F) There are many registered marks containing the picture/symbol of various God and Goddesses in relation to different goods such as Goddess Saraswathi, Goddess Lakshmi, God Vinayaka/Ganesh, God Shiva etc.

    G) The temple trust claimed proprietorship on the picture of the deity and the expression “Sthreekalude Sabarimala (Sabarimala of Women)” in respect of temple services, social services, welfare services and cultural activities in their application for registration and the Trade Marks Registry did not see malafides or illegalities in the applications and granted registration in accordance with the law.

    Reply

Leave a Reply

Your email address will not be published.