Why is it necessary to revoke the ‘Trademark on deity picture’ ?
In fact, I’m not that joyous with my determination to drag a Temple Trust to the litigation arena. However as a responsible citizen of India, I had no choice left with me save a Judicial remedy as the Government authorities, press and media continued to neglect my caveats on the serious prejudice caused to the religious freedom guaranteed by the constitution, if the private appropriation of religious icons are allowed.
A trademarks on the picture of deity and the appellation “Sabarimala of Women”, are not only ‘unethical and unlawful (see petitioner’s version in this News)’, but illegal also. It is worth mentioning here that every legislation has a specific purpose, and so for the Trade marks Act also. The preamble of the THE TRADE MARKS ACT, 1999 says explicitly that it is “An Act to amend and consolidate the law relating to trade marks, to provide for registration and better protection of trade marks for goods and services and for the prevention of the use of fradulent marks”.
Having confirmed that the Trade marks Act is meant for the protection of trademarks for goods and services, it would be interesting to see how the Trademarks Act defines the terms, “goods“, “services” and “trademarks”
According to Section 2(1)(j) of the Trademarks Act, “goods” means anything which is the subject of trade or manufacture.
Section 2(1)(zb) says “trade mark” means ‘a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours’.
While picture ‘per se’ is not a trademark as per the above definition in Section 2(1)(zb), it seems that the Trademark registry have given an extended meaning to the term,, “MARK” capable of being graphically represented and including combination of colous. Of Course, there is no surprise in this matter if they could grant a trademark to the deity as such. Ironically, the Trademarks Act mandates the registry to ensure that the trademark is distinctive and non-deceptive by a thorough Novelty Search. (A simple search in Internet will show you that the trademarked picture is the icon being worshipped by crores of people in Kerala and even outside).
Looking from other side of the deal, I could find no clue about the “Trade or Manufacture” associated with the Temples, the “Goods” being manufactured in Temples and the need for a “TRADE MARK” to distinguish their “Goods” or “Services” from their Competitors.
The Trademark Registry says that they have granted the trade marks for “Temple Services”.
It just prompted me to have a look at the definition of “Services” under Trademark Act. According to Section 2(1)(z), “service” means service of any description which is made available to potential users and includes the provision of services in connection with the business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising.
To the best of my understanding the term “temple services” is meant for “services to the temple” (supply of pooja materials on payment basis for example). But, as per the definition of “services” in Section 2(1)(z), the services shall be connected with business of any industrial or commercial matters and made available to potential users.
It is hard to believe for a common man that a place of worship is a equivalent to a business establishment and the devotees are potential users of the facility.
The Attukal Bhagavathy Temple Trust claims that the Trademark would help them to prevent unauthrised use of the picture and the title. So they are aiming at the monopoly conferred by Section 28 (1) of the Trademarks Act, which says “Subject to the other provisions of this Act, the registration of a trademark shall, if valid give to the registered proprietor of the trademark the exclusive right to the use of the trademark in relation to the goods or services in respect of which the trademark is registered and to obtain relief in respect of infringement of the trademark in the manner provided in this Act.”
There may be many roadside vendors using the picture of attukal deity in their products (many times as a reverence to the deity and not essentially by commercial interest). Attukal temple trust would threaten them in the name of Trademark certification. No need to say that it would result in religious tensions.
There is one more danger. If this picture continues to be registered, another person (may be from some other religion also) can apply for a Trademark by modifying any part of the picture with some other expressions which are not auspicious. As per law, trademark registry will have to grant a trademark on that, as it would be “distinctive” and “not deceptive” (lawyers will easily prove it).
Shockingly, the Trademark registry has no intelligence to understand the wisdom of the law makers in inserting the following clause vide Section 9(2)(b) of the Trademarks Act.