Trademark for the picture of deity: Serious prejudice to religious freedom

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 unauthorized 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 worshiper 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 canceling 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 taking suitable 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