We reportedthat the Attukal Bhagawathy Temple Trust (“Trust”) in Kerala had secured trademark protection for the picture of its deity (Trademark No. 1420800) and the title ‘Sabarimala of Women’ (Trademark No. 1420799) under Class 42 – a residuary clause (for temple Services, social services, welfare services and cultural activities). The Division Bench of the Kerala High Court initiated suo moto case against the aforesaid registrations in early 2009 based on a petition faxed by Mr. Praveen Raj. The matter is still pending before the High Court.[For ‘The Hindu’ report, see here.]
In this post, I shall address the issue of legality of such trademarks. As a positivist, I shall resist myself venturing into the unchartered territory of morality. I shall argue that the grant of such trademarks a) are not envisaged by the Trademarks Act, 1999 and b) violate Article 25 of the Constitution of India.
At the outset, I agree that trademarks have been granted to companies for marks involving Gods and Goddesses. The instant case, however, is different. In the instant case, trademark protection is granted to a religious trust for services which are carried out pursuant to religious beliefs or carried out in the name of the Goddess.
Before addressing the issue at length, I shall briefly introduce the Attukal Bhagawathy Temple. The Attukal Bhagavathy Temple in Thiruvananthapuram, one of the ancient temples of South India, is popularly described as the ‘Sabarimala of the Women’. According to the official website of the Trust, the Goddess in the temple of Attukal is worshipped as the supreme mother, creator of all living beings, the mighty preserver and the destroyer. The temple is renowned for the annual Attukal Pongala festival. The festival is scheduled to be held on 26th February this year.
Violate Trademarks Act, 1999 (“TM Act”)
TM Act is “an Act to amend and consolidate the law relating to trade marks, to provide for registration and better protection of trade marks for goods and services and for the prevention of the use of fraudulent marks.” A trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others. Further, it indicates the connection in the course of trade between the goods or services and some person having the right as proprietor/permitted user, as the case may be (Section 2(zb) of TM Act). A service means service of any description which is made available to potential users. The registration gives the registered proprietor of the trademark the exclusive right to the use of the trademark in relation to the goods or services in respect of which the trademark is registered (Section 28(1) of TM Act).
As stated earlier, the Trust obtained trademark registration for the picture of the deity and the title ‘Sabarimala of Women’. According to Section 2(zb) of the TM Act, the mark should indicate connection in the course of trade between the services and the proprietor. The expression “proprietor”is not defined under the TM Act. As per the canons of interpretation, it is permissible to peruse the dictionarymeaning of the term in the absence of any definition thereof in the relevant statutes. A “proprietor” is one who owns something or one who has theexclusive rightor title to something. As stated earlier, the Trust obtained registration for temple services, social services, welfare services and cultural activities. Is considering a Trust as the proprietor of temple services, social services, welfare services and cultural activities a legally feasible proposition? In other words, can a Trust be considered as one which has exclusive right or title over the said services? Legally speaking, it cannot be. The Supreme Court in Ratilal Panachand Gandhi v. State of Bombay (AIR 1954 SC 388) held that “religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines.” A Trust cannot claim exclusive title over temple services, social services, welfare services and cultural activities carried out pursuant to the religious faith. The devotees have as much stake as the Trust has in the said services. Therefore, the Trust is not a proprietor of the said services and therefore, cannot claim exclusive right over the picture of the deity and the title for the said services.
Moreover, the Division Bench of the Delhi High Court, in Bhole Baba Milk Food Industries Ltd. v. Parul Food Specialities (P) Ltd, agreed with the Single Bench judgment that the name of a deity, which is in the public domain, cannot be monopolized. [We blogged on the judgments here and here.] Following the rationale, the picture of the deity and the title ‘Sabarimala of Women’cannot be granted trademark protection especially when the Goddess is worshipped as the supreme mother and creator of all living beings!! The picture of the deity and the related title are very much in public domain. I shall make my argument clearer with an example. There are various denominations within Christianity – Catholics, Protestants, Orthodox etc. It defies trademark law principles if say, Catholic Church claims exclusive right over the picture of Jesus Christ for church services, social services, welfare services and cultural activities. The followers of Catholic Church have as much stake as the Catholic Church has. So do other Churches and their followers. So do the non-Christians as Jesus was sent to redeem the entire humanity!! Undoubtedly, Jesus Christ falls in the public domain and therefore, his picture cannot be granted trademark protection. Same is the case with trademark registrations obtained by the Trust. Further, it can be argued that the grant of such trademarks hurts the religious susceptibilities of a class or section of the citizens of India (which is one of the absolute grounds for refusal of registration under Section 9 of TM Act) as it involves objectifying religious symbols and titles.
Violate Constitution of India
Article 25 of the Constitution grants “freedom of conscience and free profession, practice and propagation of religion”. As stated earlier, religious practices or performances of acts in pursuance of religious belief is as much a part of religion as faith or belief in particular doctrines. When registered, the State bestows the registered proprietor of the trademark with the exclusive right to the use of the trademark in relation to the goods or services in respect of which the trademark is registered.
Perceived in the extant context, a disciple of Attukal Devi enjoys the same right as that of the Trust for initiating inter alia social services, welfare services and cultural activities carrying the deity’s name, picture and the related title. In the light of grant of trademark protection, the Trust enjoys the exclusive right to use the deity’s picture and the title for the aforesaid activities. In other words, the devotees can be precluded from using the picture of the deity and the related title in the said services initiated by them. This vitiates Article 25 of the Constitution and is, therefore, unconstitutional.