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 aboutSection 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.”