Copyright Trademark

Montblanc’s ‘Gandhi pen’ lands in court


“I have no copyright in my portraits but I am unable to give the consent you require.

Thus wrote Mahatma Gandhi in May 1931, in response to manufacturer who wanted to use his portrait in roofing tiles. Nearly four score years on, an international luxury brand wants to do precisely what Gandhi expressly bid against – use his portrait in the manufacture of prohibitively expensive, limited edition pens.

But it’s been a noisy launch, and perhaps very unexpected and discomforting for a brand accustomed to the more understated corridors of marketing…
As it has turned out, within days of announcing the launch of Montblanc’s limited edition pens commemorating the 140th birth anniversary of MK Gandhi, the German premium pen maker has been issued a notice by the Kerala High Court on a writ petition seeking a ban on the marketing and sale of these pens. (Image from here)

The Petition

The petition has sought relief on grounds that the manufacture of these pens is wrong, illegal and liable to be prohibited under Indian law. The petition was filed by Dijo Kappen, managing trustee of the Centre for Consumer Education at Pala in Kottayam, Kerala.

Specifically, the petition draws attention to Section 3 of the Emblems and Names (Prevention of Improper Use) Act, 1950 (download link), under which

no person shall, except in such cases and under such conditions as may be prescribed by the Central Government, use , or continue to use, for the purpose of any trade, business or calling or profession, or in the title of any patent, or in any trademark or design, any name or emblem specified in the Schedule or any colourable imitation thereof without the previous permission of the Central government”

Further, Entry 9A of the Schedule to the Act lists “the name or pictorial representation of Mahatma Gandhi” as an item that categorically cannot be used for the purpose of any trade, business or profession under the provisions of the Act. (Image from here)

The petition argues that “Mahatma Gandhi is considered as the epitome of simplicity”… and “Making him the symbol of a 14 lakh pen is nothing but an attempt to degrade everything that Gandhiji symbolised, and to mock a nation of middle class and individuals below the poverty line who look up to him and who he tried to liberate.”

Gandhi viruddh Gandhi

According to this BBC report,Gandhi’s great-grandson Tushar Gandhi has endorsed the idea. His charitable foundation has already received a donation of $145,000 from Montblanc and will receive between $200 and $1,000 for each pen sold.” Tushar Gandhi is reported to have announced at the pen launch that “It’s a pen which Gandhiji always associated with, it was his greatest tool. Also the donation is for an Indian Trust,which is for the good of the Society.”

The petition counters that the Rs 70-lakh donation received by the Kolhapur-based charitable trust, and Tushar Gandhi’s subsequent comment is nothing but a “mischievous statement intended to give an impression that the Mahatma used Mont Blanc pens.”

Tushar Gandhi seems to the only man standing in the Gandhi family in his endorsement of the brand. In an overnight response to the launch, the Mahatma’s governor-grandson, Gopalkrishna Gandhi, has written a moving piece of his grandfather’s relationship with the pen and the act of writing. Here, he recalls the story of the tile manufacturer quoted at the top of this note, as also other anecdotes which clearly suggest that Gandhi himself would have objected to the use of his portrait in this manner, were he alive today.

Montblanc taken by surprise?

Meanwhile, Montblanc executives appear to be flummoxed: In an interview with the BBC,the company’s chief executive Lutz Bethge stated that the pen was intended to honour Gandhi, and he “wouldn’t have thought that people would have reacted negatively”.

For those wondering what on earth this story is referring to, on September 29, Montblanc released limited series of luxury pens priced at about Rs 14 lakh each, called “Mahatma Gandhi Limited Edition 241” and “Mahatma Gandhi Limited Edition 3000” in India. The pens, handmade in gold and silver, are engraved with Gandhi’s portrait on the nib. Only 241 such pens are expected to be released in the market, with the number 241 signifying the miles walked by Gandhi from Sabarmati to Dandi in March-April 1930, in protest against salt taxes.

17 comments.

  1. AvatarRohit

    hi sumathi,

    its the 241 vesion which costs rs.11 lakhs approximately.there is also a “less expensive” version which will be 3300 in number and costs around rs.1.7 lakhs. to put the record straight, montblanc periodically releases commemorative pens to celebrate certain eminent personalities and their lives…a recent one being dedicated to George Bernard Shaw (which is one of my prized pens incidentally)..there are several others like Pope Julius, Octavian, Caesar, Semiramis, Catherine the Great etc which are periodically released.

    While I agree that a person like Gandhiji, who was the epitome of simplicity and lack of ostentation, might find it odd to be made the subject of a pen which costs so much, one should look at another aspect of it-a.its a commemorative pen which is meant to honour his memory. b.a large chunk of the proceeds go to charities in his name.

    i am also a bit surprised that the people raising a hue and cry at the pen did not do so while Lladro, another luxury segment creator, had released a statue of Gandhiji costing around rs.40,000.

    lets appreciate the beauty and the effort which went into the process and leave it at that….
    cheers,
    rohit

    Reply
  2. AvatarLatha R Nair

    Sumathi – that is a great post!

    While Rohit (above) might feel justified about his views, Mont Blanc did get on to the wrong side of trade mark law and the Emblems and Names (Prevention of Improper Use) Act as you rightly said. I wish Mont Blanc had consulted a trademark lawyer before venturing into this!

    And it is a pity that someone like Tushar Gandhi, the grandson of the Mahatma, endorsed this idea when the Mahatma himself was averse to advertising. This is not the first time a trust for Gandhi is doing such things. I am attaching a link to an article “penned” by a colleague and myself way back in 2002 in the Economic times.

    http://www.knspartners.com/files/Marking%20the%20Mahatma%20to%20the%20market.pdf

    While Mont Blanc’s intentions to honor the Mahatma are laudable, it is hard to believe that there was no intention to capitalise on the great man’s image! Otherwise why would the pens be sold in limited editions (241 only)and marketed at prices that are affordable only to those with very deep pockets!

    Let’s hope that Dijo Kappen’s petition would help Gandhi to rest in peace…

    Reply
  3. AvatarSneha

    Dear Sumathi,

    A great post as usual! However, I believe we are losing sight of the real issue here.

    As per my understanding, the legal issue in this dispute arises due to the prohibition under the Emblems and Names (Prevention of Improper Use) Act. Had it not been for the prohibition, then only the Mahatma’s unwillingness to give his consent as far back as 1931 for use of his image for commercial gain would be responsible for the ethical dilemma that Mont Blanc has been embroiled in.

    As Rohit mentioned, the purpose of these special commemorative editions is to honour and celebrate eminent personalities. Assuming that there is no prohibition under the Emblems and Names (Prevention of Improper Use) Act, what would the consequence be if any other eminent personality (lets take an example of Mother Teresa) also refuses such consent?

    For e.g. the Indian Postal Department regularly takes out special edition stamps/first day covers to commemorate special people/events. Isn’t there an element of profit involved in that as well? Also, if there is an ethical issue involved with the profit that Mont Blanc will earn out of the sale, then the recent auction of the Mahatma’s possessions should also be disputed.

    Reply
  4. AvatarSumathi Chandrashekaran

    Hi all – thank you for your insightful comments.

    # Rohit, Thanks for your comment. The workmanship is certainly something that ought to be appreciated, yes. But I have to agree with Latha – that they seem to have mis-understood the law in going ahead with the product. But you raised some interesting queries which Sneha picked up on, which I shall respond to below.

    #Latha, Thanks for the link to the note. That was a fascinating report, and perfectly appropriate for this post.

    #Sneha, great comment – you’ve spotted a black hole. And as usual, I have *no* information on this front.

    However, as an amateur philatelist, I can tell you that it is the Philatelic Advisory Committee under the Department of Posts, Ministry of Communications and IT, that decides what commemorative stamps are to be issued. This decision is often made after recommendations are received from citizens. What issues they factor in while making such a decision is unknown to me.

    The downside, of course, is that grandparents of all members in government suddenly find a stamp all to themselves. What a coincidence, eh.
    (read this delightful Outlook article for more info: http://www.outlookindia.com/article.aspx?217487)

    And re the ethical argument, you’re right in suggesting that there may be a case to dispute the recent Gandhi memorabilia auction. I haven’t attempted to study this in any detail. The SC judgement that Latha’s article quotes – Sable Waghmare & Co v UOI: AIR 1975 SC 1172 – makes some general observations that may be of interest. I would also be inclined to explore posthumous moral rights to a good name, or something on those lines. But like I said, this question will take some research 🙂 or at least, until I can claim to be an expert. 🙂

    Now that you bring it up, in similar vein, I am curious to see how the Centre responds to the proposed renaming (after the ‘other’ Gandhi family) of public utilities by the Uttar Pradesh government…

    Reply
  5. AvatarKruttika Vijay

    Hi Sumathi

    I was wondering, does the right of publicity have any role to play at all in this debate?

    As far as I understand, in the US, the publicity rights cannot be invoked posthomously. The argument however in one case, I think it was to do with Marilyn Monroe’s estate, was that you cannot posthomously invoke a right that the “person” in question itself may not have objected to in their lifetime.

    This does not apply here, since I’m pretty sure Gandhiji was not aware of Mont Blanc have any intentions to manufacture pens with him on the nib. 🙂

    Reply
  6. AvatarSumathi Chandrashekaran

    Tks for the bailout Kruttika. Good point, but I am not sure if publicity rights can be protected post mortem in India? (I recall a recent query on IPKat on similar lines: http://ipkitten.blogspot.com/2009/04/post-mortem-publicity-rights-can-you.html)

    As you rightly point out, consent is an important factor, so how do you seek consent in such matters? I haven’t studied this in any depth at all, and would appreciate insights.

    As a further question to be explored, can an individual not listed in the schedule of the Emblems and Names Act invoke that act itself? What about the heirs of a deceased person not named in the schedule?

    *also, an erratum: the SC judgement referred to in an earlier comment is Sable Waghire, not as written previously.

    Reply
  7. AvatarRohit

    Hi Sumathi,
    Regarding this issue, I would like to point out that regarding the query raised by Sneha about the issuance of stamps, the Emblems and Names (Prevention of Improper Use) Rules 1982 deals with this issue, namely sub-rule (3) to Rule 8 which states that “Issue of postal stamps, coins or other commemorative items brought out by the Central Government or a State Government in honour of any of the persons or institutions whose names are included in the Schedule” is permissible.
    I agree that technically Montblanc may very well fall foul of the law, particularly in view of the Supreme Court judgement referred to above.

    Reply
  8. AvatarSumathi Chandrashekaran

    Rohit –
    Thank you for the clarification, and digging out the Rules for our benefit. Excellent stuff.

    For those interested, a copy is available here: http://www.taxmann.net/Sm2006/SMRules/chp12_v3.htm

    In addition, Rule 8(5) gives a lot of leeway in re the general use of symbols/emblems, which may be permitted subject to specific approval of the Central government.

    I have learnt my lesson: this is what comes of attempting to research/respond to comments when in REM mode…

    cheers
    sumathi

    Reply
  9. AvatarSneha

    Dear Sumathi

    Thank You for providing the link for the Rules and thanks to Rohit for doing the tedious task of reading through them.

    I would like to clarify here that I used postage stamps just as an example. As Kruttika has pointed out, the real issue seems to be centered around consent.

    I took the example of Mother Teresa whose name is not mentioned in the Act. Unlike Gandhiji, whether she would have consented to the use of her name/portrait or not is unknown, however, like Gandhiji, she was also an epitome of simplicity and her mission in life was to tend to the poor, sick, orphaned and diseased. What if it was her that Mont Blanc was commemorating? Would the ethical issue arise then? Or would we take the aid of the right to publicity and seek the answer in the Marilyn Monroe Case?

    Reply
  10. AvatarAndy

    Maybe we should have consulted Gautam Buddha before flooding the markets with them “Laughing Buddhas”. Gosh I missed out on making money of those fat dolls.
    Point is, it’s time for us to mind our own business. A mindset of policing other people is not progressive at all.

    Reply
  11. AvatarLatha R Nair

    As for Sneha’s comments, I would think that there is more of a legal issue (Emblems & Names Act prohibition) here than an ethical issue.

    In my opinion, an ethical issue would still arise if majority of the proceeds from the pen is not going to charity. My understanding is that the lion’s share of the profit is kept by Mont Blanc and a pittance is given to the trust? Correct me if I am wrong…

    While it is Mont Blanc’s choice as to whose memory they should honor whose they should not, there must be better and less ironic ways to honor the memory of a great man who lived the most simple and frugal life than by making and selling luxury pens at costs unaffordable to the common man… Perhaps they could indulge in some charity by distributing pens (not the commemorative ones!-something the children can write with) to children from the slums in India or school children from India’s rural areas? After all, Gandhi was of the belief that true India exists in its villages!

    Hence, even if they were to comemmorate Mother Teresa as in the example given by Neha, it would reek of corporate opportunism in my opinion. I doubt if anyone who emulates Mother Teresa would like to buy such pens… or whether they can afford it..

    In my view, the issue is that of propriety of the manner of commemoration….

    Reply
  12. AvatarRenu Gupta

    there are several products in the market which bear gandhi’s portrait..from t-shirts to bags to coffee bugs. r we implying that everyone has to go seek permission for this?

    Reply
  13. AvatarAnonymous

    “Pen is mightier than the sword”… At least no one created a sword with his pic. What could be a better symbol for non-violence than a pen?

    Reply
  14. AvatarLatha R Nair

    Renu – if these things are there in the market, there is a violationo of the Emblems and Names (Prevention of Improper Use) Act that prevents it as explained in Sumathi’s post… All it means is that you would just get on the wrong side of the law!

    Reply
  15. AvatarAnonymous

    It is rather interesting for me to read that blog. Thanks for it. I like such themes and everything connected to them. I would like to read a bit more soon.

    Reply
  16. Avatarpromotional pencils

    These was really great information given by you, well according to my point of view, I think that this pen, aimed at the expanding Indian market for luxury goods, is not at odds with the ascetic beliefs of Gandhi.

    Reply

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