Trademark is an identity. Let us leave for a second what the Trademarks Act defines a trademark; in layman’s terms, a trademark is an identity to your business, the products or services that you sell and businesses wrack their heads to come up with a brand name/trademark that is unique and/or that which holds affinity with the public.
But at times, we do tend to go overboard with uniqueness/affinity that the brand ends up being offensive in one way or the other. That is exactly what Sections 9(2)(b) and 9(2)(c) intend to forbid.
The Singular Section 9(2)(b) and (c)
Section 9 per se is not an easy provision to get through, laying down several criteria for determining if a trademark is entitled to be accepted. While Section 9(1) is the most common provision one can perceive in an examination report, Section 9(2) is a provision which leaves no stones unturned.
- Absolute grounds for refusal of registration.— (2) A mark shall not be registered as a trade mark if—
(b) it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;
(c) it comprises or contains scandalous or obscene matter;
While there are aren’t many cases you come across invoking these provisions, the cases which do invoke them are indeed interesting and worth exploring.
In a landmark judgement in Lal Babu Priyadarshi vs Amritpal Singh (2015(12), SCALE 76, decided on Oct. 27, 2015), the Highest Court of India in 2015, held that no trademark registration could be afforded to the names of Holy Books on grounds Section 9(2)(b) of the Act. In this case, the Plaintiff had applied for the mark “Ramayan” for incense sticks. Interestingly it was initially allowed by the Registry but got snared during the opposition stage. The Hon’ble Apex Court held that the term “Ramayan” was the name of the Hindu religious text and thus not permissible to be used in respect of goods or services.
Another interesting one is the Attukal Devi case where the very picture of the deity, the legendary Kannagi, was applied to be registered as a trademark. Obviously, the case incited Section 9(2)(b) and the case has been dealt with, by us in our earlier blog.
The Yardstick for Scandalous/Obscene trademarks
Scandalous and Obscene, in my opinion, are two words, which would connote different things to different people. I do really wish that the Trademarks Act had shed more light; been more precise, on what is scandalous or obscene (the proposed manual mentions “A mark which on its face appears to be offensive shall be refused”). What is obscene or scandalous to me might not even ruffle your feathers. But all said and done, we do have Section 9(2)(c) prohibiting trademarks that contain scandalous or obscene matter.
One interesting case from the United States dealing with a pretty similar issue is the Slants case where their trademark “The Slants” was denied on grounds of being in violation of the Lanham Act which In essence, forbade registering marks which were disparaging, to any persons, living or dead. In this case, the Slants was considered disparaging Asians, to be specific. It is interesting to note that the mark was applied for, by an Asian-American rock band. The Supreme Court of the United States ruled in favour of the rock band, allowing the mark. It observed that the disparagement clause was against the First Amendment’s Free Speech clause.”
Section 9 – Unassailable….or Not
While dealing with Section 9(2)(b) is not half as difficult, Section 9(2)(c) of the Indian Trademarks Act might bring in mixed opinions in many (me included). While there is a need to maintain a certain standard as far as trademarks are concerned, it is equally critical not to trespass on a legitimate and legal right, not to mention the fundamental right of speech and expression. With 9(2)(b) and 9(2)(c)….I would think twice!!
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