Analysis of the judgment
I shall analyse the judgment in this post. At the outset, I would like to state that I am a positivist. I believe in an impartial legal analysis of the given set of facts devoid of any moral argument whatsoever. For the following reasons, I argue that the extant legal framework impliedly prohibits the registration of marks such as the Instant Marks and the instant judgment is, therefore, legally incorrect. [For my earlier post on this issue, see here.]
a) The Instant Marks, being marks in the public domain, cannot be granted registration
The Court rejected the contention that the Instant Marks, being in the public domain, cannot be monopolized and cannot be granted trademark protection. I disagree. The Instant Marks are very much in the public domain. It is pertinent to note that 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.] Further, the mark ‘Manjal’ was earlier removed from the Registry inter alia on the ground of being in the public domain. [See here.] The judgment failed to appreciate this basic tenet of trademark law. In fact, the Court didn’t even broach the issue of whether the Instant Marks fall in the public domain or not.
The Amicus also drew a parallel whereby he referred to the various denominations within Christianity and a situation wherein one of the denominations claims right over the picture of Jesus Christ. The Court did not appreciate this parallel drawn by the Amicus. According to the Court, Christianity, a semitic religion, is characterized by monotheism and not polytheism. Further, “…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.” This distinction is unheard in trademark law. All that is relevant is whether the Instant Marks fall in the public domain or not. The aforesaid distinction between monotheism and polytheism and the local worship of deities don’t salvage the Instant Marks from its ineligibility (of being in the public domain) and thereby make them eligible for registration.
b) The Trust is not the proprietor of the mark
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 dictionary meaning 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 the exclusive right or title to something. Is considering a Trust as the proprietor of Said Services viz., temple services, social services, welfare services and cultural activities a legally feasible proposition? 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.” [Though the aforesaid case deals with an altogether different set of facts, the principle is relevant.] 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 enjoy exclusive right over the Instant Marks.
According to the judgment, the Trust stands in the status of the manager of the estate of the idol; a perpetual minor. I am not challenging this determination of the judgment albeit I find it to be an impertinent one. Enjoyment of the status of the manager of the estate of the idol doesn’t make the Trust a proprietor. The real issue was, therefore, unfortunately overlooked.
c) The registration of Instant Marks cause prejudice to the interests of devotees
I am of the view that the Instant Marks cause prejudice to the interests of the devotee in a manner which is different from what has been perceived by the judgment. I shall explain.
It was contended that the registration would 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 would 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)
I am unable to agree with the approach of the Court. The registration, by virtue of S. 17(1) of TM Act, 1999, confers on the proprietor exclusive right to the use of the trade mark taken as a whole – as far as the Said Services are concerned. The instant registration (like any other trademark registration) confers the Trust with the exclusive right to use the Instant Marks for the Said Services. Accordingly, if any devotee uses the Instant Marks for the Said Services (which is well within his Constitutional right), it amounts to the violation of TM Act, 1999. The grant of registration to the Instant Marks is more like granting registration to the Government of India over the name ‘India’ for say, welfare activities of the government. This hypothetical registration overlooks the facts that a) ‘India’ is in the public domain; b) the citizens of India have as much stake as the Government of India has in initiating a welfare activity in the name of the nation and c) Government of India doesn’t enjoy proprietary right over welfare services carried out in the name of the nation.
The judgment didn’t adequately appreciate the implications of the registration. The judgment overlooked the fact that the allied activities (like social service/ cultural activity/welfare service/temple service in the name of the religion) fall within the ambit of Article 25 of the Constitution (as held in Ratilal Panachand Gandhi v. State of Bombay (AIR 1954 SC 388)).
d) The registration of the Instant Marks violate the Constitution of India
I have already argued that the registration of Instant Marks cause prejudice to the interests of a devotee. 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. Therefore, the Said Services logically fall within the ambit of Article 25 of the Constitution. As argued above, the State, by virtue of registration, bestows the Trust with the exclusive right to use the Instant Marks in relation to the Said Services. As argued above, a disciple of Attukal Devi enjoys the same right as that of the Trust for initiating the Said Services carrying the Instant Marks. In the light of the registration, the Trust enjoys the exclusive right to use the Instant Marks for the Said Services. This vitiates Article 25 of the Constitution and is, therefore, unconstitutional.
The Court, without much elucidation, held that the exclusivity for the services does not fall foul of the dictates of Articles 25 and 26 of the Constitution of India. Unfortunately, the Court did not examine the Constitutional aspect in the light of rights enjoyed by the Trust on registration. It is pertinent to note that the judgment lacks clarity on appreciating the implications of the registration which is evident from the following paragraph.
While discussing commercialization, the Court 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 a 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)
There is an inherent contradiction between parts in green and those in red. If you read the parts in green, one gets the impression that the Trust can exclude others as far as the Said Services are concerned. This amounts to the exclusion of a devotee from performing any social service/cultural activity/welfare service/ temple service in the name of the deity. If this interpretation is accepted, then a devotee can be precluded from say, running a school (a social service) in the name of the deity. This goes against the Constitution as Article 25 protects allied activities pertaining to religion as well
If one reads the part in red, one gets the impression that one may perform any activity pertaining to the registered services (temple services, social services, welfare services and cultural activities) subject to the following conditions: a) without stating / giving an impression that one’s acting on behalf of the Trust and b) without enjoying any monetary benefit. However, this interpretation dilutes the exclusive right granted to the Trust on the Said Services and thereby violates the TM Act. Registration confers an exclusive right on the proprietor which cannot be whittled down by a judicial interpretation. Interestingly, this interpretation contradicts the very averment of the Trust which was accepted (Paragraph 13): “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.” (Paragraph 11) Had the Court correctly examined the contours of this averment and its implications, it might have arrived at a different conclusion.
I disagree with the judgment for the following reasons: a) the judgment overlooked the very basic tenet of trademark law that a mark in the public domain cannot be granted protection; b) the judgment did not even examine whether the Trust is a proprietor under the TM Act; and c) it also failed to appreciate the implications of registration especially from a constitutional perspective. In the light of arguments – a, b, c and d, it can be logically concluded that the extant legal framework impliedly prohibits the registration of marks such as the Instant Marks. If the intention of the Trust was to preclude someone from undertaking any activity pertaining to the Said Services in the name of the Trust, it should have resorted to criminal law and not trademark law.
I am, however, inclined to appreciate the constructive role played by the Amicus. The Amicus fairly submitted that the TM Act does not place blanket prohibition on the registration of religious symbols and deities (Paragraph 4). The Amicus inter alia forcefully argued that the Instant Marks, being marks in the public domain, cannot be granted trademark protection (Paragraph 5). The Amicus also inter alia argued that a) the Trust cannot claim proprietary right over the Said Services considering that any devotee could carry out such services and b) the grant of registration is unconstitutional (Paragraph 5). However, I disagree with him on his stand on the implications of registration upon the interests of the devotee – “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….” (Paragraph 11) The Instant Marks cause prejudice to a devotee albeit in a different manner (as discussed above). I am, therefore, of the view that the Amicus should have argued that the submission of the Trust was legally incorrect. On the whole, as evident from the judgment, I am of the view that the Amicus played a constructive role. The Court was also quite appreciative of the efforts of the Amicus as evident form Paragraph 16 of the judgment.