A spiritual man’s trademark is his true belief in God. But what if the man tries to trademark the God he believes in? Imagine waking up in a world where Trusts have exclusive right over images of popular deities; getting booked under s. 29 of the Trade Marks Act, 1999 (hereinafter TM Act 1999) for selling an idol of Lord Hanuman or being unable to purchase a Shri Ganesha calendar from your local vendor because the image is trademarked by a specific company. The question arises – is this really possible? Fortunately, at present, it is not possible to trademark pictorial representations of deities. However, a single person has the power to change the law, but the consequences can affect an entire nation. Such is the situation of the Attukal Devi case pending in the High Court of Kerala. The judgment of this case will set a benchmark in the country, further defining the pathway for scope of the Trademark law in India.

Before we address the legality of such trademarks, it is important to have a brief history of the case. The Attukal Bhagavathy Temple in Thiruvananthapuram, one of the ancient temples of South India, is regulated by the Attukal Bhagawathy Temple Trust. In 2009, the Attukal Bhagawathy Temple Trust in Kerala secured trademark protection for the picture of its deity Kannagi, a legendary figure from the Tamil epic the Silappathikaram (Trademark No. 1420800) and the title ‘Sabarimala of Women’ (Trademark No. 1420799) under Class 42 – a residuary clause (for temple Services, social services, welfare services and cultural activities) because it “would help to prevent unauthorised use of the picture and title.” The Division Bench of the Kerala High Court initiated suo motto case against the aforesaid registrations in early 2009 based on a petition faxed by Mr. Praveen Raj. The matter is still pending before the High Court.

While I understand that trademarks have been granted to companies for marks involving Gods and deities, granting trademark protection to a religious trust for services which are carried out pursuant to religious beliefs or carried out in the name of the Goddess is quite peculiar, to say the least. My main concern is the trademark protection granted to the graphical representation of Goddess Kannagi (Trademark no. 1420800). This decision of the Controller General of Patents, Designs & Trademarks gives rise to several legal and moral issues that warrant immediate attention. As far as the moral issues are concerned, dear reader, ask yourself this – Do you think the aforementioned scenario is morally sound and do you wish for it to happen? Unless you’re an atheist as well as a sociopath, the answer is obviously no, right? There, your moral dilemma has been solved.

Moving on, let us now discuss the legality of registration of such trademarks.

II. Legality of such Trademark

1. Validity under the Trade Marks Act,1999
The fundamental question that emerges is whether the pictorial representation of the deity ought to be regarded as a subject of trademark at all or not.  Section 2(1) (zb) under the TM Act 1999 defines the term “trade mark” as follows:

“Trade mark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from choose of others and may include shape of goods, their packaging and combination of colours”.

A literal reading of the section suggests that in principle, “pictures are not register able as such” for a trademark, while graphical representation acting as a “mark” (but including combination of colours) is permitted. Further, it indicates the existence of a connection in the course of trade between the services or goods and a person having the right as proprietor/permitted user. Now, since the Trust obtained registration for temple services, social services, welfare services and cultural activities can it be considered as one which has exclusive right or title over the said services? Legally speaking, it cannot be. The Supreme Court in Ratilal Panachand Gandhi v. State of Bombay held that “religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines.” A Trust cannot claim exclusive title over temple services, social services, welfare services and cultural activities carried out pursuant to the religious faith. The devotees have as much stake as the Trust has in the said services. Therefore, the Trust is not a proprietor of the said services and therefore, cannot claim exclusive right over the picture of the deity and the title for the said services.

Also, the Trademark Act is intended only for the purpose of protecting marks (or symbols) which are used for Trade and Commerce. The image of Goddess Kannagi has been registered by the Controller General of Patents, Designs & Trademarks as it is depicted publicly. This is the picture of deity who is worshipped by lakhs of devotees. Therefore, the image is a “common” and hence, the Trust has taken Trademark on a “common”. The Division Bench of the Delhi High Court, in Bhole Baba Milk Food Industries Ltd. v. Parul Food Specialities (P) Ltd, held that the name of a deity, which is in the public domain, cannot be monopolized.

Therefore, the trademark on the picture of Kannagi Devi needs to be revoked, if not, it would pass a wrong message to the public that “commons” also can be appropriated for business purposes. This would also pass the message that temples are origin of trade and commerce. If the registration is not cancelled, appropriation of religious symbols will become a practice, and will be misused by others.

2. Constitutional Validity

Article 25 of the Constitution grants “ freedom of conscience and free profession, practice and propagation of religion”. Spiritual methods or performance of functions in pursuance of religious perception is as much a part of religious beliefs as trust or faith in particular doctrines. Once a trademark is registered, the proprietor gains exclusive rights to use the trademark which in turn prevents others from using the same. Thus, in the light of grant of trademark protection, the Trust enjoys the exclusive right to use the deity’s picture and the title for the aforesaid activities. In other words, the devotees can be precluded from using the picture of the deity and the related title in the said services initiated by them. This vitiates Article 25 of the Constitution and is, therefore, unconstitutional.

3. Hurting Religious Susceptibilities u/s 9(2) (b)

Next, we look into Section 9(2) (b) of the Trade Marks Act 1999, which deals with Absolute grounds for refusal of registration. This section mandates 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. Keeping in mind the point mentioned above, precluding people from using the image(s) of the deity may lead to a build up of religious tension. The word “Ramayan” was refused registration for the same very reasons. Also, the trademark granted commercializes a religious symbol, setting a dangerous precedent that other money spinning religious trusts would also soon exploit for their own commercial gains. This is also likely to injure the faith of the people in temples and religious places as a whole. Therefore, a dangerous negligence has been shown to Section 9(2) (b) of the Trade Marks Act, 1999 in the registration of this trademark.

III. Conclusion

Practically speaking, the image of the Goddess was the Intellectual Property (hereinafter IP) of someone who is most likely not traceable today and the trust is merely a custodian to something which is actually in Public domain. The image of Kannagi Devi is not the IP of the Trust and the physical idol/statue is merely its property. If the trademark registration is maintained, in future, we may see trademark applications being granted on many popular images in the public domain i.e. Images of various deities, religious symbols or who knows, even the Asoka Chakra and Stambh. In my view, the Registry was quick to jump the gun, without realizing the implications of such a registration. Furthermore, the motives of the Trust come into question – If they believe themselves to be a charitable and divine organization, why the attempt to commercialize? Such organizations are granted tax exemptions in the name of spiritual things even though they act like business enterprises. For the time being, all we can do is hope that the Kerala High Court will order against the registration because otherwise, it could really be a dangerous and preoccupying precedent. Personally, I hope it will be considered valid the day pigs fly.

This article has been authored by Anchit Tripathi who is pursuing law at Dr. Ram Manohar Lohiya National Law University, Lucknow .

Raja Selvam

Founder & Managing Attorney, Selvam & Selvam | Practice areas include Trademarks, Patents, Domain names & Business law. Visiting faculty, Department of Journalism, Madras University where I teach copyrights & trademarks law. Passionate about entrepreneurship, start-ups, stocks, farming, technology and law.