When a corporation trademarks an aspect of a community’s heritage — as the backlash against Kim Kardashian and Disney highlighted — what can that community actually do? Here are the tools Indian trademark law offers, and why they come at a premium.
Note: The IPAB was abolished in 2021; rectification/cancellation applications now lie with the High Courts rather than the IPAB referenced below.
The tension
Trademarks identify and distinguish goods — but trademark law also weighs public interest and community sentiment. Following Part I on the difficulty of recognising “cultural assets”, this piece covers the remedies available if a juggernaut trademarks part of a community’s heritage.
Action by the Trade Marks Office
At examination, if a mark is offensive to a section of the public, it can be hit by the absolute grounds of refusal — a mark isn’t registrable if it hurts the “religious susceptibilities” of a group. Interpreted broadly, this can capture cultural appropriation — making the Examiner’s opinion pivotal.
Options for the affected community
1. Collective marks. A community can protect significant cultural expressions as collective marks — owned by a group, needing no product association, usable exclusively by members. But pre-empting and trademarking every cultural asset isn’t realistic.
2. Opposition. If an offensive mark is advertised after examination, the community can oppose within four months of publication, arguing cultural appropriation; the opposition is decided on merit.
3. Cancellation (rectification). If an appropriating mark is wrongly registered, an aggrieved community can seek rectification to cancel it — requiring the applicant to be a “person aggrieved,” on grounds such as the mark falsely suggesting an association with the community.
4. Filing a suit. The above only stop registration — not necessarily use. Where the community holds a registration or collective mark, an infringement suit is the strongest remedy, on likelihood of confusion/deception or dilution (blurring/tarnishment — often the better bet). Even without a registration, the common-law remedy of passing off is available, though it requires proving wilful misrepresentation leading to actual confusion.
The catch: cost
Trademark law offers multiple tools — but at a premium. Communities facing appropriation often can’t afford the cost, time and energy these remedies demand. The IP regime, in India and worldwide, still lacks specific policies to protect cultures and prevent appropriation — a lacuna that will take time to fill.
The takeaways
- Absolute grounds can block offensive marks — via “religious susceptibilities,” read broadly.
- Collective marks let a community own its heritage — but can’t pre-empt everything.
- Opposition (4 months) and cancellation are available — cancellation needs a “person aggrieved.”
- Suits (infringement or passing off) are the strongest, but the remedies are costly and slow.
See Part I on cultural appropriation and trademarks and our trademark practice.
Frequently asked questions
Can a community stop a corporation trademarking its heritage? It has tools — absolute-grounds refusal, opposition, cancellation and suits — but each requires time, cost and (for cancellation) being a “person aggrieved.”
What are collective marks? Marks owned by a group and usable exclusively by its members, without needing product association — a way for a community to protect cultural expressions.
How long is the opposition window? Four months from the mark’s advertisement in the Trade Marks Journal.
Who can seek cancellation of an appropriating mark? A “person aggrieved” — now before the High Court (since the IPAB’s 2021 abolition) — on grounds such as the mark falsely suggesting association with the community.
Legislation referred to
- The Trade Marks Act, 1999