Can Religious Symbols Be Registered As Trademarks?

1. Introduction

India being a pluralistic country, has multiple religions and the Constitution of India secures freedom of faith, freedom of expression to all the citizens, irrespective of their religion. The State doesn't have a religion of its own and doesn't interfere with any religion. Article 25 of the Constitution secures to the citizens the right to freely profess, practice and propagate their religion. "Profess" means to entertain such religious belief as may be approved of by his judgment or conscience. the "Practice" means to exhibit one's belief and ideas in such overt acts as are enjoined or sanctioned by his religion. "Propagate" implies spreading around the religion. In the various religions, various symbols are also prevalent. So, the question arises that in a country like India, where everyone has freedom of religion and where people use the religious symbols for their business or trade also, can such religious symbol be registered as trademarks? In this paper, we will try to look into this aspect in detail.

2. Definition of Trademark

Section 2 (zb) of Trade Marks Act, 1999 defines 'Trademark' as a mark capable of:

- being represented graphically and

- distinguishing the goods or services of one person from those of others and

- include shape of goods, their packaging and combination of colours.

The two requirements of the mark which are highlighted from the said definition are – (i) graphic representation; and (ii) distinctiveness.

2. Requirement of Distinctiveness

The said definition incorporated in the Trade Marks Act is in line with the definition of trade mark in TRIPS. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) provides that "[a]ny sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark"^[1].

Paris Convention also stipulates that the trademark should have 'distinctiveness'.^[2]

The requirement of distinctiveness is really essential as it is based on the 'theory of trademark'. Trademarks must serve some functions like identifying one trader's goods, tracing or identifying the commercial origin of the goods, guaranteeing quality, and advertising the goods. Moreover, distinct trademarks also act as a device of protecting consumers against confusion about origin of goods.

2. Other Essentials for registration of trademark

Section 9 specifies certain other grounds also on which registration of trademark shall be refused. Further, Section 9(1)(a) of the Trade Marks Act, 1999 explicitly prohibits registration of a trademark which is devoid of any distinctive character. The marks "which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or services;"^[3] shall not be registered. Further, the marks which have become customary as per the trade practices, are also not capable of being registered.^[4]

Furthermore, if a mark is scandalous or obscene or is likely to create confusion or is against the norms of Names and Emblems Act, shall also not be registered.

3. Whether Religious marks can be registered?

After understanding the basic requirements of registration of trademark, we can now see whether a religious mark is eligible for registration or not?

3. Diversified approaches in different countries:

There are diverse approaches applied in different countries to decide whether the religious marks are eligible for trademark registration or not? Some countries exclude the registration of the religious mark on the ground of 'public order' or 'morality'. For instance, in United States, the Lanham Act (also known as the Trademark Act of 1946) refuses registration to the mark which "consists of or comprises immoral, deceptive, or scandalous matter;"^[5] Some countries refuse registration if the mark or sign is blasphemous in nature. Some other countries use the concept of 'distinctiveness' to refuse the registration to certain religious signs.^[6]

In United Kingdom, an application was made for registration of the trademark "JESUS" in various categories and its registration was refused on the ground that branding which employs words or images of religious significance can have a serious troubling effect on the people whose belief it impinges upon and other who adhere to the view that religious beliefs should be treated with respect in a civilised society.^[7]

Xavier Morales, a US trade-mark attorney writes that- "If you successfully trademark a religious symbol, the legal protection will only serve to prevent your competitors from using the religious symbol in a way that would cause consumers to be confused as to where the goods or services are coming from. The trademark would not prevent individuals from using the symbol in non-competitive ways, nor would it prevent the associated religion from using the symbol in worship."^[8]

3. Indin approach to trademark registration of religious marks/ signs

Section 9(2)(b) of the Trade Marks Act, 1999 provides that a mark shall not be registered if "it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;"^[9]

Thus, after all the previous discussion regarding the provisions of the Trade Marks Act, 1999, prima facie it seems that a religious mark can be registered as a trademark, if-

-it is capable of graphical representation;

-it is capable of distinguishing the goods or services;

- it does not have tendency to deceive the public or cause confusion;

- it does not contain or comprise of any matter likely to hurt the religious feelings of any class or section of the citizens of India;

- it does not comprise or contain scandalous or obscene matter;

- its use is not prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.

- it is not a customary mark as per established practices of trade;

- it is not a mark which exclusively represent quality, kind, quantity, purpose, origin or time of production of goods or services.

-it is not a result of the shape of the goods which is necessary for nature or use of goods.

Now let us have a look at what has been the judicial approach towards this issue. I will segregate the judicial approach into two segments: (1) Trademark applications by commercial establishments involving Gods and Goddesses; and (2) Trademark registration by religious trusts or religious establishments for services which are carried out pursuant to religious beliefs or carried out in the name of the Goddess.

3. Trademark applications by commercial establishments involving Gods and Goddesses

The first case in this context is of 1969, prior to coming of the Trade Marks Act, 1999; but it has not lost its relevance and still throws light on this aspect whether religious marks should be permitted to be registered as a trademark. In the case of "K.R. Krishna Chettiar v. Shri Ambal and Co."^[10], the issue was whether "AMBAL" and "ANDAL" are deceptively similar? Sri Andal and Sri Ambal are separate divinities. Respondent has registered trademark consisting of a label containing a device of a goddess Sri Ambal seated on a globe floating on water enclosed in a circular frame with the legend "Sri Ambal parimala snuff" at the top of the label, and the name and address "Sri Ambal and Co., Madras" at the bottom. The appellant seeks registration of a mark which contains in Tamil, Devanagri, Telgu and Kannada the equivalents of the words "Sri Andal Madras Snuff" and the picture of goddess Sri Andal and the legend "Sri Andal". Sri Andal was a vaishnavite woman saint and was deified because of her union with Lord Ranganatha. Sri Ambal is the consort of Siva or Maheshwara. The Court dismissed the appeal, holding that the impugned mark (AMBAL) is deceptively similar to the registered trademark (ANDAL) on the ground of phonetic similarity. The Court observed that neither the business of respondents is limited to South India nor the customers are limited to Hindus only. It might be possible for the Hindus of South India to distinguish between Shri Ambal and Shri Andal as the name of two different goddesses, but not for other segment of customers. The phonetic similarity between the two marks is likely to confuse customers.

The said question came before consideration in certain recent decisions of Supreme Court. In the case of "Lal Babu Priyadarshi v. Amritpal Singh"^[11] the issue for consideration was that whether the word "RAMAYAN" (name of a holy book) can be registered as a trade mark in accordance with the provisions of the Trade Marks Act, 1999 (Act) or its registration is prohibited under Section 9(2) of the Act?

Facts of the case were that the appellant was selling incense sticks using the mark "Ramayan". He applied for registration of the trademark "RAMAYAN" with the device of crown. The said application was opposed by the respondent, who was also a dealer of incense sticks. The respondent claimed the use of trademark "Badshah Ramayan" prior to the appellant and alleged that the application for registration of his trademark is pending. The appeal was filed against the order of the Board, which had set aside the order of Assistant Registrar of Trademark allowing the registration of Trademark "Ramayan".

The respondent argued that:

• "Ramayan", name of a religious book cannot become subject-matter of monopoly for anybody.
• The impugned trademark "Ramayan" is identical with "Badshah Ramayan", which is pending for registration.
• The mark "Ramayan" is being used by 20 traders for same class of goods, in Patna and in other cities.

The Apex Court dismissed the appeal and held that no person can claim the name of a holy or religious book (such as Quran, Bible, Ramayan, Guru Granth Sahib etc.) as a trademark for his goods or services.^[12] It further held as follows:

• The Court relied on the Eighth Report on the Trade Marks Bill, 1993^[13] submitted by the Parliamentary Standing Committee, wherein the Committee had expressed its view that any mark relating to gods, goddesses, places of worship should not ordinarily be registered as a trade mark.^[14]

• "If any other word is added as suffix or prefix to the word "ramayan" and the alphabets or design or length of the words are same as of the word "ramayan" then the word "ramayan" may lose its significance as a religious book and it may be considered for registration as a trade mark. However, in the present case, we find that the appellant had applied for registration of the word "ramayan" as a trade mark. We also find that in the photographs, after adding "om's" to the word "ramayan", at the top and in between "om's" and "ramayan", the sentence, "Three Top Class Aromatic Fragrance", is also written. Thus, it is not a case that the appellant is seeking the registration of the word "om'sramayan" as a trade mark. Further, from the photographs, we find that the photographs of Lord Rama, Sita and Lakshman are also shown in the label which is a clear indication that the appellant is taking advantage of the gods and goddesses which is otherwise not permitted."^[15]

• The respondent is the prior user of the artistic mark.

• There are many other users of the said mark in Patna and in other parts of the country. Therefore, it has become public juris and common to the trade. The Court relied on National Bell Co^[16]. wherein it was laid down that "the distinctiveness of the trade mark in relation to the goods of a registered proprietor of such a trade mark may be lost in a variety of ways e.g. by the goods not being capable of being distinguished as the goods of such a proprietor or by extensive piracy so that the marks become public juris."^[17]

In another case of "Freudenberg Gala Household Product Pvt. Ltd. vs. GEBI Products"^[18], the issue before Bombay High Court was whether Respondent's mark "MAHALAXMI" used on brooms is similar to plaintiff's mark "LAXMI"? The High Court held that it is not an infringement since the names of Hindu Gods are not exclusive and such word cannot be monopolized by one party.

3. Trademark registration by religious trusts or religious establishments for services which are carried out pursuant to religious beliefs or carried out in the name of the God/ Goddess

In the case of Suo motu Proceedings Vs. Controller General of Patents, Design and Trademarks^[19], the trademark registration of "picture of Attukal Diety" and "Sabarimala of Women" was challenged before the Kerala High Court. The said trademarks were registered in class 42 for the "temple services, social service, welfare service and cultural activities". The petitioner contended that (i) the icon of "Attukal Deity" is common and cannot be monopolised by the trust; and (ii) by grant of registration, the temple has been reduced to the source of commerce, thereby injuring the belief and faith of the devotees. Mr. Santosh Mathew was appointed as the amicus curiae in the case. He referred to the Draft Manual on Trademark Practice and Procedure. He also opined that the name of deity cannot be monopolised since it is in public domain. He further negatived any sort of proprietary right of the services by the Trust, since such services can be performed by any devotee. He further said that the said registration was hit by the provisions of Art. 25 of the Constitution, since the exclusive right obtained by the Trust by such registration precludes the use of picture of deity or title by any devotee in services initiated by them.^[20]

The Court referred to many decisions including Amritpal Singh case^[21], Bhole Baba case^[22] and I.H.H.R. Hospitality case^[23] wherein it was held that "law would ordinarily lean against common words haying cultural roots in the society being monopolised to the exclusion of others."^[24] But, the Kerala High Court in the present case drew a distinction from the above cited decisions. It said that, "The said decisions indicate rival claims set up by business establishments, to names of Hindu deities or concepts which are commonly used not only in religious aspects, but has also been associated with goods and services. The rival claimants intended to market their goods or services, in such names, and in exclusion to other commercial ventures. In the instant case, it is the Trust which manages the temple and is in charge of the affairs of the deity; a perpetual minor in law, who has obtained registration of the picture of the deity as also the appellation. According to us, what assumes significance is the status of the deity as also that of the Trust in relation to the deity."^[25] It further said, "The deity in the instant case is the "Attukal Bhagavathy" and the Trust stands in the status of the manager of the estate of the idol; a perpetual minor. That the deity, in this case the Attukal Bhagavathy, has been consecrated in the temple of which the management is run by the Trust are undisputed facts. The registration of the picture as also the appellation, as is evident from the pleadings, is for the services mentioned above, which are specified under Entry 42 of the Fourth Schedule of the Trademarks Rules, 2002. The application has been submitted based on the common law right of the prior user available to the Trust for the picture and for the appellation. 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 S. 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."^[26]

Regarding the contention that the registration confers an exclusivity to the picture of the deity prohibiting any worship unless by due authorization from the trust, the Court held that the Trust in their counter affidavit has averred 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 is specifically averred that the registration only prohibits the user of the picture for the specified services."^[27]

The Court rejected another contention of the petitioner also that it promotes a commercial activity in the premises of a temple or in the name of the deity, relying on the specific averment of the Trust that the registration only prohibits the user of the picture of the deity and appellation for services protected under the registration. It said, "What is prohibited by the registration is not making an offer of Annadhana (Offering of rice) by an individual, in the name of a deity, but receiving money from others projecting and promoting oneself to be the agent or the Manager of the temple or the deity. It is common knowledge that today faith, not comprehensible to the five senses, is one of the biggest businesses. 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."^[28]

Answering the last contention of the petitioner regarding violation of freedom of religion, the High Court held that there is a difference in language of clause (b) and (d) of the Art. 26 of the Constitution. On one hand, for the matters pertaining to the religious affairs, religious body's right of management is a guaranteed fundamental right which cannot be taken away by any religion. Whereas, the right of administration of property owned and acquired by a religious denomination can be regulated by the State by means of validly enacted laws. But, it is to be kept in mind that State can only regulate the administration of trust properties but it cannot altogether take away the right of administering the property. Accordingly, the exclusivity for the services aforementioned, as noticed by us, does not fall foul of the dictates of Articles 25 and 26 of the Constitution of India.^[29]

4. Conclusion

From the above study, we see that no fixed criteria can be laid down in this regard that whether religious symbols can be trademarked or not. Certain principles which emerge are that the generally religious marks or symbols should not be allowed registration, as laid down in the Eighth Report on the Trade Marks Bill, 1993 submitted by the Parliamentary Standing Committee. Further, no body can monopolise God/ religious texts/ symbols. However, in the context of the registration of trademark by religious trust, I respectfully differ from the opinion expressed by the Kerala High Court in Suo Motu Proceedings (supra). The High Court didn't look into the aspect whether the impugned trademark is in public domain or not. It tried to distinguish Christianity and Hindu religion on the basis of being characterized by monotheism and polytheism respectively; whereas such distinction nowhere exists in the Trademark Act. Another critic of the said judgment Mr. Mathews P. George explains beautifully the impact of the judgment in the following words-

"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."^[30]

The Court further did not analyse the question whether the Trust is the proprietor under the Trade Marks Act, 1999. As explained above, this judgment in my view is setting incorrect precedent. The proper recourse available with the Trust was to have resort to criminal law in case of any sort of personation. Getting trademark registered in such a case is not a proper course of action.