Letter to The Controller General of Patents, Designs and Trademarks, Govt. of India
From,
R.S. Praveen Raj
Scientist - IP Management & Technology Transfer, NIIST, Thiruvananthapuram - 19
[Former Examiner of Patents & Designs, Indian Patent Office]
Dear Sir,
Page 3583 of Indian Trademark journal No. 1388, Regular, March 16, 2008 (pl. see the attachment) reveals that Attukal Bhagavathy temple trust claims the entitlement of the picture of goddess "as such". While the use of image of Goddess is to be left unencumbered for all her worshippers, its private apropriation by the temple trust would enable monoploy for the use of the picture of goddess by the trust alone.
http://www.hindu.com/2009/03/09/stories/2009030954340300.htm
The trust may in turn prevent the sale of any product affixed with the picture of the goddess unless a license is obtained from the trust. While the icon of attukal deity is a "COMMON" (Belonging to all her worshipers), it's exclusive entitlement claimed by the temple trust will be a serious prejudice to article 25 (Freedom of conscience and free profession, practice and propagation of religion) and article 26 (freedom to manage religious affairs) of Indian Constitution. The trust may charge heavily for the license even from the road-side ordinary merchants selling pooja items with goddess symbol.
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 of OHM.
It seems that the Indian trademarks registry did two serious mistakes
1) 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
2) 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)
Let me 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 2(1)(e) [under Definitions and Interpretations] - - "Trademark is used in the course of Trade"
"certification trade mark" means a mark capable of distinguishing the goods or services in connection with which it is used in the course of trade which are certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics from goods or services not so certified and registrable ..............................
Section 2(1)(h) [under Definitions and Interpretations] ---------
"deceptively similar"- A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion;
Section 2(1)(z) [under Definitions and Interpretations] (Services are the services in Connection with business or commercial matters)
"service" means service of any description which is made available to potential users and includes the provision of services in connection with 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;
Dangerous - Exclusive Right is granted under Section 78 (1) and Section 75
Rights conferred by registration of certification trade marks (Section 78 (1))
Subject to the provisions of sections 34, 35 and 76, the registration of a person as a proprietor of certification trade mark in respect of any goods or services shall, if valid, give to that person the exclusive right to the use of the mark in relation to those goods or services.
Section 75 - Infringement of certification trade marks
The right conferred by section 78 is infringed by any person who, not being the registered proprietor of the certification trade mark or a person authorised by him in that behalf under the regulations filed under section 74, using it in accordance therewith, uses in the course of trade, a mark, which is identical with, or deceptively similar to the certification trade mark in relation to any goods or services in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken as being a use as a trade mark.
Trademark Office overlooked the absolute grounds of rejection in Section 9 ?
(1) The trade marks -
(a) which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person;
(b) 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 service;
(c) which consist exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade,
shall not be registered:
Kerala Government may kindly intervene and take measures to get the Trade mark revoked in larger public interest. I also request the Controller General of Patents, Designs and Trademark, Govt. of India to look into the matter.
Let me also serve a copy of this letter to the Office of Honourable President of India and Office of Honourable Chief Justice of India since constitutional issues are involved.
Thanking you in anticipation of a quick action at your end.
Yours faithfully,
R.S. Praveen Raj
