As our readers may be aware, Subramanian Swamy recently wrote a letter to the Union Ministry of Information and Broadcasting, arguing that Arnab Goswami’s use of the word ‘Republic’ as the title of his new show is proscribed by the Emblems and Names (Prohibition of Improper Use) Act of 1950 (“The Act”).
Republic made its social media debut with the launch of a Twitter handle and Facebook page on the 7th of January and is also in the process of launching its website republicworld.com.
According to news reports, Swamy contended in his January 13th letter to the Ministry that item 6 in the schedule to the Act prohibits the use of the word ‘Republic’.
This argument, if accepted, could serve as an embargo to trademark registration for Arnab’s new show as well, inasmuch as Section 9(2)(d) of the Trademarks Act imposes an absolute prohibition on the registration of marks that are prohibited under the Act.
Item 6 to the schedule to the Act reads as follows: “6.? The name, emblem or official seal of the President, Governor, Sadar-i-Riyasat or Republic or Union of India.”
A bare perusal of the item indicates that the name in question must, for it to fall within the ken of item 6’s prohibition, relate to the Republic of India and not Republic simpliciter (H/T Prashant).
This being the case, it becomes clear that, on a literal interpretation of item 6, the use of the word ‘Republic’ and nothing more by Goswami would not be prohibited under the Act and, consequently, the Trademarks Act.
Further, the trademark registry has registered several trademarks involving the word ‘Republic’.
Examples of the same include the mark ‘Republic of Chicken’, inter alia, in class 1 [see item 1 in the search result for ‘Republic’ in class 1] and Republic of Mode in class 25 [item 14].
In fact, I found at least 2 instances of the word ‘Republic’ itself being registered: in class 25 as a label for ready-made garments [item 6] and in class 7 relating to a machinery for making bread and biscuits [item 7].
I also found an example in class 5 [item 4] relating to pesticides and fertilizers, where the mark is currently at the advertisement stage.
It would also be pertinent to note that the Indian Government has not enforced the Act and other similar laws in a robust fashion thus far. More specifically, even though the Geneva Conventions Act of 1960 prohibits the use of red cross by pharmacies in an unauthorized fashion, a large number of pharmacies used the cross freely for a substantial amount of time before switching over to a green cross.
Similarly, Montblanc International and its Indian distributor, Entrack International Trading Private, used to sell Mahatma Gandhi Special Edition pens – an activity that is squarely prohibited by item 9-A in the schedule to the Act. The Government, however, did not take any meaningful action to prohibit this kind of blatant contravention of the Act.
It was only after a PIL in this respect was filed before the Kerala High Court that Entrack gave an undertaking that it would discontinue the sale of such pens.
Goswami’s trademark application itself was filed on 20th November in the name of an organization called ARG Outlier Media Private Limited. The application was filed in class 35 which relates to advertisement and publicity services.
Curiously, the Trademark Registry acted with uncharacteristic swiftness on Goswami’s application, issuing the examination report on the 12th of January.
While the report does not raise any objection on the basis of Section 9(2)(d), it does raise an objection based on Section 9(1)(a) in the following words: “As the mark is a common surname/personal name/geographical name/ornamental or a non-distinctive geometrical figure and as such it is not capable of distinguishing the goods or services of one person from those of others.”
According to recent news reports Goswami has decided to change the name of the show to ‘Republic TV’. While Goswami’s application in its earlier form would have been on a secure legal footing on account of the interpretation of the Act that I have proffered above, this change will put its legal validity beyond any pale of doubt.
PS: I owe a huge debt of gratitude to Prashant for sharing a number of invaluable insights without which this article would not have been possible.