- The Emblems and Names (Prevention of Improper Use) Act, 1950 does not extend beyond India and when it does it does not extend beyond the citizens of India
- If the right of publicity is invoked in this case the opposition lawyers will have an uphill task trying to prove valid interest as post mortem publicity rights can be invoked by the descendants of the deceased or his/her authorised representatives not the general public at large.
- Under Ecuador law, officially recognised flags and emblems of any State may not be registered as a trademark without the permission of that State.
The provision only protects flags and emblems. Mahatma Gandhi however is the Father of our nation; he is neither a flag nor an emblem. His name is protected under Indian law through, The Emblems and Names (Prevention of Improper Use) Act, 1950 (hereinafter “Emblems and Names Act”). No equivalent provision to protect names of national icons appears to exist in Ecuador’s trademark legislation. Since Mahatma Gandhi is neither a flag nor an emblem his name is not protected under Ecuador’s trademark law.
- Further, another provision states that signs may not be registered as trademarks if they violate third party rights such as those, “that consist of the full name, pseudonym, signature, title, nickname and caricature, likeness or portrait…except where proof is given of the consent of that person or his heirs. This provision supports the case of the opposition to some extent but it is silent as to whether it applies only to living persons or whether it extends to persons beyond their lifetime.
If it does extend beyond one’s lifetime then, as we mentioned in our earlier post, Gandhi would probably not have consented to such commercial use of his name. However since this provision applies to all persons and not just to national symbols, I think for a case to succeed under this provision the person whose name is being used or his/her heirs would have to bring the case and the general public would probably not have standing.
- Finally, Article 66 (18) of the Ecuador Constitution protects the right to good honour and good name. It protects the image and voice of every person. Essentially this provision is a right of publicity provision, and just as we mentioned for the provision above, these rights can usually be invoked by the persons themselves or their heirs and not the public at large.
A good post!
I have a doubt in association of “Identity use” to the position of the same in Equador. Especially when we read the provision that states “signs may not be registered as trademarks if they violate third party rights such as those, “that consist of the full name, pseudonym, signature, title, nickname and caricature, likeness or portrait…except where proof is given of the consent of that person or his heirs”. The trade name in question is “Arroz Gandhi” and not “Arroz Mahatma Gandhi” or “Arroz Mohandas K Gandhi”. Well, all of us understand the sentiments associated with the name “Gandhi” in India. But isn’t it a general family name when no depiction of our father of the nation is put along with? Please let me know if my understanding is wrong?
Interesting, despite the opposition text and its procedural aspects details are not avaliable for public.
By the way, “Gandhi” currently is a european community trademark as “BABY GANDHI”(CTM N°007154305) and the same mark was registered in USPTO (N°3153287). Identical register in USA were granted for URBAN GANDHI (77461625), GANDHI’S GUN (3652315), EVERYDAY GANDHIS (2688616) all of USPTO, and curiously anyone said nothing about it…could be that Gandhi as an ecuatorian trademark or/and rise product are more offensive than forniture, clothes and games from Europe, that are some goods unprotected in OHIM…or a gun reference in USA is more friendly with the national memory?in this opposition case: what’s the real motivation for this patriotic behavior?
I wonder if there is provision in Equador laws for stopping the registration of a mark if it is sought to be registered in bad faith. If the applicant is not Mr. Arroz and Gandhi by surname, why should he at all adopt Gandhi in his trade makr application? Will it not be in bad faith?