Kerala HC ends suo moto proceedings against the grant of Attukal deity trademark – I

I had earlier reported that the Kerala HC ended suo moto proceedings against the grant of Attukaldeity trademark and declined to grant any relief on merits. Broadly speaking, the HC held that the grant doesn’t violate Trade Marks Act, 1999 (“TM Act”) and Constitution of India. I intend to analyse the aforesaid judgment dated 12 September 2013 in these posts. In the first post, I shall present an abstract of the judgment. I shall analyse the judgment in the second post. [For my earlier post on this issue, see here.]

For the uninitiated, 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) (“Instant Marks”) under Class 42 for temple Services, social services, welfare services and cultural activities (“Said Services”). 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. Mr. Praveen Raj was later transposed as 3rd respondent. The other respondents were Controller General of Patents, Designs and Trademarks (Respondent 1), Government of Kerala (Respondent 2) and the Trust (Respondent 4). Mr. Santhosh Mathew, Partner, M/s. Ninan and Mathew Advocates, was appointed as the Amicus Curiae (“Amicus”).

                                                                  Abstract of the judgment

a) The grant of registration over the Instant Marks in favour of the Trust is in consonance with the TM Act

According to the Court, “what assumes significance is the status of the deity as also that of the Trust in relation to the deity.” (Paragraph 8) Relying on precedents, the Court held that the Trust stands in the status of the manager of the estate of the idol; a perpetual minor.  Accordingly, the Court held as follows: “It is the definite pleading of the Trust as also the official respondents that the picture and the appellation have acquired a distinctive character in relation to the activities and services above specified and related to the temple, as a result of a long and uninterrupted user as is provided under Section 9 of the Act. We also do not see any prohibition from granting registration of the picture and appellation to the Temple Trust under the provisions of the Act or the Rules.” (Paragraphs 9 & 10)

b) The registration will not cause any prejudice to any devotee or any member of the public

It was contended that the registration will confer exclusivity to the picture of the deity prohibiting any worship unless by due authorization from the Trust. In response, the Trust contended that “it is not their intention to restrict the rights of the devotees to worship the deity of the temple and that it was only their intention to prohibit the use of the picture of the deity and the appellation for services protected under the registration.” It was specifically averred that the registration will only prohibit the user of the picture for the specified services. Accepting the arguments of the respondent, the Court noted that the “learned Amicus Curiae also has, in the course of argument, fairly submitted that the registration of the picture and appellation with respect to the temple services as has been explained by the respondent – Trust in their counter affidavit would not cause any prejudice to any devotee or any member of the public….Worship is personal and the registration is inconsequential as far as the belief of a devotee is concerned and it has no effect, material or spiritual, on the deity.” (Paragraph 11)

c) The Instant Marks stand on a different footing

It was contended by the Amicus that the Instant Marks, being in the public domain, cannot be monopolized and cannot be granted trademark protection. It was pointed out that the Goddess was worshipped as the “supreme mother and creator of all living beings.” The Amicus also drew a parallel by referring to the various denominations within Christianity and a situation wherein one of the denominations claims right over the picture of Jesus Christ. According to the Amicus, “Jesus Christ believed to have been sent to redeem the entire humanity, including non-Christians, the other denominations within Christianity cannot claim such exclusivity to the picture or name.” Equating the grant of instant registration with the situation presented above, it was contended that the registration cannot be granted. (Paragraph 5)

The Court did not appreciate the parallel drawn by the Amicus. Christianity, a semitic religion, is characterized by monotheism and not polytheism. According to the Court, “…each of the Hindu deities popularly and commonly understood are revered in different forms, conferring varied presumed powers in different locales. A deity venerated and worshipped in a locality through the manifestation of the supreme being and also equated with one of the deities in the pantheon, all the same would have by lore or myth, unique qualities and powers as distinguished from such deity consecrated anywhere else. Further, while an application for registration of the name “Jesus” would invite specific prohibition as per the provisions of the Act and the Manual; in the present case viewed in the above backdrop, such a restriction, according to us, is not there.” (Paragraph 12)

d) The Instant Marks i) do not promote commercial activity in the name of the deity and ii) do not violate Constitution

The HC was of the view that the grant does not promote commercial activity in the name of the deity. The Court, once again, highlighted the specific averment of the respondent Trust that the registration only prohibits the user of the picture of the deity and appellation for services protected under the registration. The Court gave the instance of “Annadhana” (“offering of rice”) in the name of the deity or the temple by a devotee. The Trust does “Annadhana” on behalf of the devotee and realizes the costs from the devotee. According to the judgment, “What is prohibited by the registration is not making an offer of Annadhana by an individual, even in the name of a deity consecrated at Attukal, but receiving money from others projecting and promoting oneself to be the agent or the Manager of the temple or the deity. To conduct an Annadhana for which money is received from the public or from any individual in the name of the deity or the appellation for the Temple, is what is prohibited by the registration. ….Contrary to the allegation of the petitioner that by registering the picture and the appellation for the aforesaid services, the Temple Trust reduces the place of religious worship to a business; we are of the opinion that it prohibits such activity in the name of the deity or the temple by any other and thus restricts the commercialization of the services offered in the name of the deity.” (Paragraph 13)

In the light of the above, the Court, without much elucidation and quoting the excerpts of SC judgment in Ratilal Panachand Gandhi, held that the exclusivity for the services does not violate Articles 25 and 26 of the Constitution of India.  The complaint was held to be devoid of any merit and was dismissed.


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