Going through over thousand trademarks published each week in the Indian Trade Marks Journal is a rather cumbersome task, but the marks that you come across in there sometimes are very interesting. Some unique, some brilliant and some down- right hilarious.

For the uninitiated, once a Trademark is filed, and examined, if the Trademark Office finds no concern or those concerns have been addressed, the marks are published in the Trade Marks Journal. This journal comes out every Monday on the website of the trademark office and is available to the public, so that any trademark owner can check if someone else has filed a trademark application similar to theirs. If something similar is found, a person can oppose the advertised trademark within three months from the date of publication.

In general you will almost always come across a mark that is similar to a well known trademark. From copying well known logos, like the swoosh of Nike to word marks like CARTIER and positioning them beside a more humble name or logo, the Journal captures the innate need of human beings (and their business extensions) to associate themselves with something bigger!

The most recent journal however had something that was little different from the run of the mill rip offs. I came across a trademark that was advertised called ORGY. While just the term ORGY may not be scandalous what was curious was the image that contains the words ORGY. The image can be seen quite clearly below. The image appears to be the silhouetted image of a man on his haunches and frankly beyond that I can’t quite make out what the artist intended. Whatever his initial intentions it certainly looks like the man might be at an orgy, while the others are not in picture.  The mark has been applied for in Class 25, for clothing, footwear and headgear.

Indian Trademark law states that a trademark cannot be registered if it contains scandalous or obscene matter. While the terms obscene and scandalous are left to judicial interpretation there is a Draft Manual on Trademarks Practice and Procedure which does shed some light on the issue. There is a specific portion in the manual that addresses this scandalous section, where it states that if a mark is merely distasteful it won’t be objected to. Only if it causes outrage among the public would the Registry object to its use.

The general stance appears that if there is nudity or sexually explicit material that forms a portion of the mark then it is obscene and ought to be removed.

In the manual, it goes on to talk about marks that are against public morality and policy and  how marks like “WHITE DOVE” can be objected to as it could refer to MDMA (Methylenedioxymethamphetamine).

If WHITE DOVE oughtn’t be registered as it is slang for a narcotic, then the slang for a group sex party should be thought of as a bit scandalous; more so if the word is accompanied by an image that represents more than alludes!

Anyway, the mark has now been advertised in all its glory, probably because the examiner was unaware of the meaning of the mark. If you don’t know the meaning, it is inherently distinct as a label, and as a colleague of mine joked, does not describe the goods at all. Moreover there aren’t too many Orgy marks on the register, so it was directly advertised after examination – no objections whatsoever.

Being self appointed guardians of morality (prudes) and as a bit of an experiment in law we did send a letter to the Registrar, merely informing him of the meaning of the word and how in conjunction with the image makes the mark a tad scandalous. We will have to wait for a reply and see what happens.

Regardless of the outcome of our letter, and the probable use of the mark, you won’t catch me telling my wife anytime soon “Hun I’m headed out, do you know where I left my orgy pants”

This article has been authored by Navarre Roy, an IP Law practitioner.

Editorial Staff

Editorial Staff at Selvam and Selvam is a team of Lawyers, Interns and Staff with expertise in Intellectual Property Rights led by Raja Selvam.