India is a secular country where people who follow different religions live together. People have faith in religion they follow, and they give huge importance to all the norms, beliefs, rituals, and customs of their religion. For that matter, religious symbols of any religion are also considered as a vital part of religion. The Constitution of India under Article 25(1) guarantees to all the citizens the right to freely profess, practice, and propagate their religion. In India, everyone has the right to freely profess their religion in the way they want to. Since people give vital importance to religious symbols, and they are emotionally as well as religiously connected to things associated with their religion, the chances of using these symbols by trade and business to attract customers also increases. The businesses/trades have been using religious symbols by connecting them with their products. Now the question arises can religious symbols be registered as a trademark? This article aims at addressing this question.
Trademark:
Trademark is one of the kinds of intellectual property. All around the world, laws are developed to protect the trademarks. Trademark means a mark that is used to differentiate the goods or services of one from the goods or services of others. Section 2(zb) of The Trade Marks Act, 1999 defines a trademark as a mark that is capable of being represented graphically and distinguishing the goods and services of one person from those of others. It includes the shape of goods, their packaging, and a combination of colours, a symbol, a picture, a word, a logo, etc. The Trademark plays an important role in establishing a proprietary right of a producer on its goods or services. Therefore, the law governing trademarks i.e. The Trade Marks Act 1999 protects the rights of the producers over their trademarks by taking action against infringement of their rights.
Religious symbols as a trademark:
Under Section 9 of the Trade Mark Act 1999, a trademark is examined before it is registered. Section 9(2)(b) provides that a mark shall not be registered as a trademark if, it contains or comprises any matter likely to hurt the religious susceptibilities of any class or section of the citizens. The commercialization of religious symbols is prohibited under Section 9(2)(b) because people’s emotions, faiths, and beliefs are connected to it and they may get harmed if such symbols are used in a harmful manner. The use of a mark which may hurt the religious susceptibilities is a ground for refusal of registration of a trademark. Another reason for prohibiting the use of religious symbols as a trademark is the proprietor right that one gets on the registration of a trademark, if religious symbols are allowed to be registered as a trademark then one will get the exclusive right over it which shall prevent or restrict others from using the same.
However, the main issue pertaining to the Section 9(2)(b) is that it restricts the registration of marks which may hurt religious sentiments of people but does not talk about their use as the unregistered mark. The Indian Courts have in several cases denied the monopoly use over the religious symbols and names. In Bhole Baba Milk Food Industries Ltd. v. Parul Food Specialities Pvt Ltd[1]., the word ‘Krishna’ was used by the respondent as a mark to sell their product. The Court held that the word ‘Krishna’ is a Hindu’s deity name and it cannot be monopolized. Recently, in Lal Babu Priyadarshi v. Amritpal Singh, the Hon’ble Supreme Court, held that no one can claim trademark over Gods, Goddesses, deities, or religious books like Quran, Bible, Guru GranthSahib, Ramayana, etc. over goods and services. In this case, the plaintiff wanted to use the word ‘Ramayan’ as a trademark of his product which was opposed by the defendant. The Court said that “the word ‘Ramayan’ represents the title of a book written by Maharishi Valmiki and is considered as a religious book of the Hindus. Thus, using the exclusive name of the book ‘Ramayan’ as a trademark for any commodity cannot be permissible under the (Trade and Merchandise Marks) Act.”The reason for prohibiting the use of names of Gods and books as a trademark is to negate the monopoly of any individual as religious names, symbols, books, etc. forms a part of the public domain and should not be restricted for the commercialization by anyone.
Conclusion:
The law as well as judicial interpretations provide that any mark which hurts the religious susceptibilities of the people cannot be used as a trademark. The courts have tried to negate the monopoly of anyone over the religious names, books, signs, and symbols for that matter because religion is for all. The symbols forming part of religion cannot be monopolized by anyone for whatever purpose. Thus, a conclusion can be drawn from the above discussion that the religious symbols, which may hurt the religious susceptibilities of people, cannot be registered as a trademark.
[1]2011 (48) PTC 235 (Del.) (DB)
This article is authored by Nikita Singh, Third-Year, LLB student at Delhi University
Also Read – Complete Procedure of Trademark Registration in India
