Mr. Commie

Author : Vinson Kurian                                  Source : Business Line

Thiruvananthapuram, Oct. 2 A public interest petition has been filed in the Supreme Court seeking ‘suo motu’ action against the grant of intellectual property right (IPR) protection to ‘Tirupati Laddu,’ which is a temple offering.

The petitioner is Mr R.S. Praveen Raj, scientist at the National Institute for Interdisciplinary Science and Technology, Thiruvananthapuram, responsible for IPR management and technology transfer, among others.

Earlier, Mr Raj worked as Examiner of Patents and Designs at the Chennai branch of the Patent Office.

PREJUDICE CAUSED

Registering Tirupati Laddu as ‘goods’ under the Geographical Indication (GI) of Goods (Registration and Protection) Act, 1999, has caused prejudice to Article 25 of the Constitution and violation of Section 9(d), Section 11 and Section 9(a) of the GI act, Mr Raj submitted.

He also voiced concern about the danger involved in the ‘private appropriation’ of ‘religious symbols’ and ‘divine indicators.’

The distinct flavour and deliciousness of the laddus made the Tirumala-Tirupati Devasthanam (TTD), administrators of the Lord Venkateswara Temple, go in for exclusive rights.

A range of rich spices like saffron, refined camphor, cashew nuts, dry grapes, cardamom and ghee go into their making.

The GI Act is meant only for protection of goods and the act defines ‘goods’ as any agricultural, natural or manufactured goods or any goods of handicraft or of industry.

Food stuff also is included in the definition under Section 2(1) (f) provided such food stuff can be stocked, preserved and sold as ‘goods’.

But Tirupati Laddu cannot be classified as an agricultural good, nor a natural good or a handicraft, leaving the option to schedule it only under industrial goods. But it is quite hard for devotees to believe that temple offerings are equivalent to manufactured goods or commercially significant commodities, Mr Raj said.

Allowing the GI registration of goods produced by private entities would defeat the spirit of GI protection, which is meant for protecting, preserving and promoting collective community rights as opposed to private monopoly rights.

However, exclusive rights for ‘products of creative mind’ are being allowed as IPR with reasonable restrictions, only because it is essential for industrial growth. No industrial purpose is served by the grant of ‘goods’ status to a temple offering, Mr Raj submitted.

secularcitizen Intellectual Property Rights, Judicial Review plea, public interest petition

It is official now! OSHO is no longer a protected trademark, at least in the US. It took nearly a decade for Osho Friends International (OFI) to mop up the war for Justice.  SECULAR CITIZEN is quite happy to hear this news; but he is still anxious - What would be the fate of Attukal deity ?

Marking the official culmination of a legal battle started nearly a decade ago by Osho Friends International (OFI), against the exclusive right held by the Osho International Foundation (OIF) Zurich for the use of OSHO trademarks in the US, the US Federal Court has ordered the cancellation of Osho trademarks in the US, thus upholding  the order passed by the Trademark and Trial Appeal Board in the US in January this year.  The Trademark and Trial Appeal Board had earlier given the verdict that “the term Osho is generic for the meditations devised by the mystic Osho and the meditation and religious movement arising from there, and as a result, defendant OIF cannot foreclose others from utilising the term OSHO to describe their own goods and services based upon such meditations and movements.”

Even though the Osho International Foundation (OIF), Zurich, had filed a Notice of Appeal on March 12, 2009 in the Court of Appeals of the Federal Circuit in Washington DC, with respect to the January 13 decision by the Trademark Trial and Appeal Board, realizing that their chances are slim in the upcoming hearing, they decided to file for withdrawal of appeal on June 19, 2009.

With the Federal Court finally dismissing the Osho trademarks, anyone in the US can now use the term OSHO without the fear of getting prosecuted. However, in the rest of the world, and in India, the Osho International Foundation’s monopoly on OSHO still reigns unchallenged.

  Now we look forward to the hearing of suo motu case in Kerala High Court in the matter of revocation of trademark on Attukal deity.

Prasanth S Intellectual Property Rights, Judicial Review Appeal, Federal Court, Osho, US

S Ramkumar, an engineer from Madurai, is battling big-wig cell phone makers such as Samsung and Spice Mobile, for infringing upon his patent (Indian Patent no. 214388) on dual SIM cards in a single mobile handset. He had dragged some of the high profile mobile phone manufacturers, including Samsung Electronics and Spice Mobile, for not paying up royalty for every dual SIM mobile phones they make/sell in India. This should be read in the backdrop of the fact that, India, as per the latest market studies conducted, has a demand of about 80,000 dual SIM handsets every month.

According to the inventor, by modifying the entire circuitry of mobile phones, multiple SIM sockets can be incorporated into them, which would then enable the handset to communicate simultaneously in different networks, with a switching time between networks cut down to few nanoseconds. He had filed for his patent in 2002, and was granted the same in February 2008. Since then he was attempting to get cell phone makers to pay up a royalty fee for the dual SIM phones they make/sell in India.

Mobile phones, according to Ramkumar, comes under his patent are,

• Mobile phones that has provisions for more than one SIM card or modified SIM cards.
• Mobile phones with more than one SIM socket/modified SIM sockets to receive SIM cards.
• Cell phones having more than one earphone/ headphone jack, wherein the said jacks accept one earphone/headphone plugs and/or blue tooth devices.

His opponents, however contend that Ramkumar’s invention is nothing but prior art. One of the importers pointed out that “the right that Ramkumar claims is for a generic class of products, over which he has no patent rights in any case”. Samsung Electronics, another high profile party involved in the suit, argues that the patent itself need to be revoked on the above mentioned grounds,  alongside mentioning that their imported product is anyway grossly different from Ramkumar’s patented product. As the matter is currently sub-judice, lawyers of both parties are refusing to divulge anything more on the contentious suit.

For now, the Madras High Court had issued an interim injunction restraining some of the cell phone makers from manufacturing the dual SIM phone/sell the same in India until the issue is resolved.

Prasanth S Indigenous Technologies, Intellectual Property Rights

SECULAR CITIZEN posts below a  thought-provoking article from Dr. N.N. Panicker, a Senior Citizen of the Nation. Dr. N.N. Panicker is an engineer with a Ph.D. in Ocean Engineering and management trainer . He has travelled extensively all over India, organizing and participating in grass-roots development efforts and conflict resolution in the Gandhian tradition. In 1994, in Calcutta, he spoke on the Evolution of Science and Religion for Peace and Harmony at the concluding session of the Centenary of Swami Vivekananda’s Chicago Speech. He has also participated in a work camp for rainwater collection in drought-stricken Rajasthan, and was involved in earthquake-proof house construction in Gujarat.

Read it here -

TRIPS and Temple Trade: Monopoly extends to Trading of Faith

We are witnessing crass commercialism creeping into various activities of our people. Such commercialism is objectionable even in business ethics and enlightened management practice as it is counterproductive in the long run. In particular, the exclusivist rent-seeking trend in the claim of intellectual property rights is harmful in a developing economy, as it does not promote productivity and innovation.Furthermore, we are dipping to the nadir when temples start claiming intellectual property rights to the deities and offerings.

Tirupati Laddu.

    The latest example is the Intellectual Property Rights (IPR) sought for the Tirupati laddu, the sweet offering, prasadam, of the Tirumala Venkateswara Temple  by the temple trust,  vide the Hindu, 2009 March 16. The Tirumala Tirupati Devasthanams (TTD), which manages the world’s richest temple, has submitted an application before the Geographical Indication Registry seeking the GI tag for geographical exclusivity for the temple offering. TTD is reported to have an approved annual budget of Rs1,925 crore for 2008-09, projecting a revenue of Rs. 40 crores from the sale of the laddus. Obviously it is not in any financial hardship to justify the action unbecoming of its divine grace, to seek protection claiming intellectual property rights on the laddus.  

Attukal Deity.

     It is reported that Attukal Temple Trust has claimed exclusive right to the temple deity’s picture and “Women’s Sabarimala” appellation, vide Indian Trademark Journal no.1388 (Regular), 2008 March 16, p. 3583. Accordingly, Attukal Bhagavathy temple trust claims the entitlement of the picture of the deity “as such”. This certification given as a trademark, originally intended for commercial advantage, seems to be inappropriate as it is dangerous and objectionable to have religious symbols appropriated for business.

       There is no valid justification for seeking intellectual property rights by the two temple trusts. With prosperity we expect magnanimity, especially where divine grace so amply visible. If the trusts see a problem of misuse of the faith symbols, it should be solved to the extent appropriate by administrative action, rather than through a legalistic approach that can lead to problems in the future. The rule, Buyer Beware (caveat emptor), should be enough in both cases with the known degree of risks involved. Commercialism masquerading with hypocrisy would not help our temples or culture.

Temple for Trade?

    ”Trademark is used in the course of Trade,” according to the Trademark Act, 1999 Section 2(1.e.) under Definitions and Interpretations. Should  ‘TM’ marking is to be made on the pictures used in worshipping!  Trademark is to indicate the source of manufacture or trade origin of the goods or services and hence to protect the ‘goodwill’ of the undertaking. Will it not be inappropriate for the Attukal Bhagawathy temple or the Tirupati temple to call itself a business undertaking and proprietors of a trade? Is it not dishonourable to claim that the Temple Trust is trading in the picture of the deity as a monopoly and that the economic “good will” protected by the trademark is for letting an object and a place of worship as a “service”? Will it not lead to unending law suits between temples, and between temples and commercial undertakings? Will it not be disgraceful? All this is for what gain? I trust the Trust will see the deep and far-reaching implications and retrace the steps to its rightful place to deserve divine grace with a charitable attitude. Without such ‘protection’ the temple had already got the recognition for drawing the largest assembly of women devotees from the Guinness Book of World Records. This year it was reported that 25 lakh women assembled  on the Ponkala day of March 10. The Tirupati temple also remains the richest without such protection.

TRIPS tripping our balance.

     The cause of this unbelievable fall in our values can be traced to the Trade Related Intellectual Property Rights regime (TRIPS) imposed by the World Trade Organization (WTO). That, in turn, was the result of the aggressive posture taken by developed countries in the General Agreement on Tariffs and Trade (GATT) negotiations in the early 1990’s to retain their advantages of earlier start. That posture was objected to because it would be used for holding the handicap and extending the exploitation of the developing countries. Patents, trademarks and other intellectual properties sought to be protected by exclusive provisions of TRIPS were pointed out as unfair to the underdogs. They would be benefiting only the parasitic ‘rent-seekers’ and not the creators. In my article, “India and the Dunkel Proposals” and presentation at the Kerala Science Congress in Thrissur in 1992, the unfair exploitation implied was exposed. The objection was based on my experience as an inventor with 15 international patents and understanding from participation in an international patent committee.   What was feared has become real. It has also led to conflicts and expensive litigation by countries like India. It led to desperation to others that cannot afford to fight.

   The exclusivist, alien culture has unfortunately spread to other areas. The most objectionable area is the trade and trademark in faith symbols. Tirupati prasadam and Attukal devi are drawn to the market place and litigation arena. Even in the religious environments commercialism seems to dominate where, on the other hand, a charitable mind is expected. This is because of the corrupting influence of the WTO regime of TRIPS,  which is alien to the Indian heritage.  

Time to Act

       If this legalistic regime can tempt and corrupt the charitable outlook that should characterize a progressive temple trust, what more harm can it not do to the social values and heritage of our country? We have already seen other aberrations and perversions in the opportunistic use of the provisions of the TRIPS at the international level. Thousand times the annual per capita income of India had to be spent on cases related to untenable patents taken on herbal remedies of India. A new world order, different from that envisaged by the WTO, therefore, should be our goal. It is necessary not only to ensure economic justice for all but also to protect the sublime culture and sustainable values of human heritage and its enhancement through innovation. The emerging controversies on the trade and trademarks of faith symbols should awaken us to the urgent task of struggling for the change. The debilitating global economic meltdown should provide the context and opportunity to undo the harm. In the meantime, native charity and discretion should protect us from the temptations for seeking and using such instruments of litigation as provided in the imposed regime.

Dr. N.N. Panicker, tatsat@vsnl.com

secularcitizen Intellectual Property Rights divine affairs, Monopoly, Tiruppati prasadam, TRIPS

Attukal Bhagavathy Temple, one of the ancient temples of South India, is popularly described as Sabarimala of the Women, as women form the major portion of devotees here. Every year women from all over the country make devotion to this temple on an occasion called “Attukal Pongala festival”.  The Goddess in the temple of Attukal is worshipped as the Supreme Mother, creator of all living beings and the mighty preserver as well as destroyer of them all. The pilgrims from all over the country, who visit Sree Padmanabha Swamy Temple and worship the Lord, do not consider their visits complete without the visit to the shrine of the supreme Mother Attukalamma.

        It was quite accidental that I came across a short news item in THE HINDU  that the Attukal Bhagavathy Temple Trust got the certification of Trade mark and hence exclusive rights to use the temple deity’s picture and the title “Sabarimala of Women”.  The most objectionable aspect in this matter is the trade of  faith and the use of faith symbols as trademarks. Moreover trademark cetification, originally intended for commercial advantage seems to be inappropriate in this context, as it is dangerous and objectionable to have religious symbols appropriated for business.  It passes a wrong message to the public that a place of worship also is a “business outfit” or “origin of trade and commerce”.        The message propagated by Attukal temple trust as to its claim for the exclusive entitlement for the use of picture of deity and the appellation “Sabarimala of Women” and its legal right to prevention of unauthorised use of the picture and title is a serious prejudice to article 25 and article 26 of Indian Constitution (Part III - Fundamental rights). While the icon of attukal deity is a “Common” (Belonging to all her worshippers), and hence the use of image of Goddess is to be left unencumbered for all her worshippers, its private appropriation by the temple trust would enable monopoly for the use of the picture of Goddess by the trust alone.          It is a common sense that “Trade marks are used in the course of Trade”.  A Trademark is to indicate the source of manufacture or trade origin of the goods or services and hence to protect the ‘goodwill’ of the undertaking. It will not be appropriate for the Attukal Bhagawathy temple trust  to call itself a business undertaking and proprietors of a trade. Further it is dishonourable to claim that the Trust is trading in the name of the deity in respect of letting the place for worship. Moreover the trust may in turn prevent the sale of any product affixed with picture of the goddess unless a license is obtained from the trust and the trust may charge heavily for the license even from the roadside ordinary merchants selling pooja items with goddess symbol.  

      Page 3583 of Indian Trademark journal No. 1388, Regular, March 16, 2008  reveals that Attukal Bhagavathy temple trust claims the entitlement of the picture of goddess “as such”. It is dangerous that religious symbols (especially image of deity etc.) are being appropriated for business in a sovereign socialist secular democratic republic, which promises JUSTICE (social, economic and political), LIBERTY (of thought, expression, belief, faith and worship) and EQUALITY of status and opportunity. Trademark on the picture of Attukal deity is equivalent to taking a patent on the symbol pranava manthra, OHMKARAM or a monopoly on “Holly mass”.

     As far as Attukal Temple Trust is concerned, this mistake might have caused by ignorance of the provisions of the TM Act, but the mistake from the part of Office of Controller General of Patent, Designs and Trademarks can never be justified. Clause (b) of Subsection (2) of Section 9 of Trademarks Act, 1999 makes it clear that a mark shall not be registered as a trade mark if it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India.  It is quite alarming that the trademark registry lacked the intelligence to understand the wisdom of the lawmakers in inserting the above provision.

    The Trademark Registry also did the following serious mistakes

a)    Overlooked the provisions of section 9(1) of Trade marks Act especially its clause (b) as to the intended purpose, values and geographical origin of the trade mark symbol claimed besides ignoring section 2(1)(h) in respect of whether the picture of deity is “deceptively similar” to other goddess images.

b)    Interpreted “Temple services” as “services being provided by the temple” (which has no relation to Section 2(1)(z) of Trademark Act 1999), while the term “temple services” is meant for “services to the temple” (supply of pooja materials on payment basis for example).

         From the definition of “trademark” in Section 2(1)(zb) and the definition of “goods” in section 2(1)(j) in the Trade Marks Act, 1999, the purpose of trademark legislation is very clear – protection of  Trade and Commerce. Further, section 2(1)(z) of Trade marks Act, exemplifies that “services” meant by TM Act are services in connection with business or commercial matters and those rendered against payment of a sum. Apparently, services provided by a Temple trust are not supposed to be considered as “services” under Trade Marks Act, 1999.

         It is very essential to quote the relevant provisions from Trade Mark Act, 1999 to reflect the alarming devastation to the integrity of the country if such unhealthy practices of private appropriation of religious symbols are allowed. Section 28 (1) and Section 78(1) of the Trade Marks Act, 1999 testifies the monopoly gained by the proprietor of the trademark or “certification trademark”. Further Section 29 and Section 75 of Trademarks Act, 1999 empowers the proprietor of the trademark to sue all the unauthorised users.

    It implies that the  Attukal temple trust would prevent all the persons from the unauthorized use of such mark in the course of trade, or from using any mark that is identical with or somewhat similar to the certification trademark it claims on the picture of deity. But here the major issue is that the trademark is granted to a religious symbol. This may prevent a devotee or worshipper from using the picture of Attukal deity even for his or her personal worship if it is not authorized by the Attukal Temple trust and in turn this will be a serious prejudice to religious freedom guaranteed by the Indian Constitution. Therefore  it is imperative that the temple trust be restrained with immediate effect from the act of propagating through media, press and its own website, the monopoly over the use of picture of deity.

           As a person working in the area of Intellectual Property Rights (which includes Patents, Trademarks, Copyright etc.) for the past seven years in various capacities, I’m very concerned about the potential devastation to the country that is likely if private appropriation of religious symbols are allowed.  Any person irrespective of his religion, caste or native, can claim trademark for said religious symbols with slight changes in its appearance and may use it for various business or trade practices. In such an eventuality the religious feelings of a mass of people may be hurt and it would endanger religious harmony of our secular country. We can’t even imagine the situation, if such a religious symbol appropriated, as a trademark happens to appear in such a place or in such a product that is not apt.

    I’m further shocked to observe a decision from Bombay High court in 1999 as reported in Indian Express that Section 295 of Indian Penal Code is toothless to punish commercial exploitation of an object of reverence, such as picture of deity if such mark had been in use for long time by the proprietor of the mark. Interestingly, Justice parkar who delivered the above judgment points out that the aggrieved person should have preferred a request for cancellation of Trademark before Controller General of Patents, Designs and Trademarks or Tribunal.

          I’m also worried to observe that Section 57 and Section 47 of Trade Mark Act mandates the applicant to go through a number of procedures after paying Rs. 3000 ( Form TM - 26), even when protection of “public interest” (and “not commercial interest”) is urged. It implies that the general public would be penalized for the mistake done by the Trade Mark Registry in understanding Section 9 of the TM Act in its right sense. I also doubt whether there is any provision in Trade Mark s Act, 1999 conferring “suo moto” powers to the Controller General for cancelling a trademark registration.

    Therefore it is necessary that all those trade marks granted by TM registry and susceptible to religious faiths be reviewed for referring to the appropriate Government for takingsuitable  measures to cancel them in greater public interest and with reference to article 25 and article 26 of Indian Constitution. There is absolutely no doubt that trademarks on religious symbols increases the vulnerability to dangerous consequences that prejudices the religious freedom. TM Registry will be incapable to deny registration on a moderately modified form of a religious symbol appearing in trade mark register if it is sufficiently justified by lawyers as distinctive and non-deceptive, even while such symbol can spur religious issues at a later stage.

 Only solution is a “BIG NO” to private appropriation of religious symbols.

             I represented twice to Chief Minister of Kerala, requesting him to intervene and take measures to get the trade mark revoked in larger public interest. I also wrote to Controller General of Patents, Designs and Trademark, Govt. of India to look into the matter. I also wrote to all the press and media establishments in Kerala to sensitise the public about the danger in the appropriation of faith symbols for trade. 

              ”LET US NIP THIS TREND IN THE BUD”

 Read a related article in Spicy IP also

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