Can Religious Symbols Be Registered As Trademarks?

Introduction India being a pluralistic country, has multiple religions and the Constitution of India secures freedom of faith, freedom of expression to all the citizens, irrespective of their religion. The State doesn't have a religion of its own and doesn't interfere with any religion. Article 25 of the Constitution secures to the citizens the right to freely profess, practice and propagate their religion. "Profess" means to entertain such religious belief as may be approved of by his judgment or conscience. the "Practice" means to exhibit one's belief and ideas in such overt acts as are enjoined or sanctioned by his religion. "Propagate" implies spreading around the religion. In the various religions, various symbols are also prevalent. So, the question arises that in a country like India, where everyone has freedom of religion and where people use the religious symbols for their business or trade also, can such religious symbol be registered as trademarks? In this paper, we will try to look into this aspect in detail. Definition of Trademark Section 2 (zb) of Trade Marks Act, 1999 defines 'Trademark' as a mark capable of: - being represented graphically and - distinguishing the goods or services of one person from those of others and - include shape of goods, their packaging and combination of colours. The two requirements of the mark which are highlighted from the said definition are – (i) graphic representation; and (ii) distinctiveness. Requirement of Distinctiveness The said definition incorporated in the Trade Marks Act is in line with the definition of trade mark in TRIPS. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) provides that "[a]ny sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark"[1]. Paris Convention also stipulates that the trademark should have 'distinctiveness'.[2] The requirement of distinctiveness is really essential as it is based on the 'theory of trademark'. Trademarks must serve some functions like identifying one trader's goods, tracing or identifying the commercial origin of the goods, guaranteeing quality, and advertising the goods. Moreover, distinct trademarks also act as a device of protecting consumers against confusion about origin of goods. Other Essentials for registration of trademark Section 9 specifies certain other grounds also on which registration of trademark shall be refused. Further, Section 9(1)(a) of the Trade Marks Act, 1999 explicitly prohibits registration of a trademark which is devoid of any distinctive character. The marks "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 services;"[3] shall not be registered. Further, the marks which have become customary as per the trade practices, are also not capable of being registered.[4] Furthermore, if a mark is scandalous or obscene or is likely to create confusion or is against the norms of Names and Emblems Act, shall also not be registered. Whether Religious marks can be registered? After understanding the basic requirements of registration of trademark, we can now see whether a religious mark is eligible for registration or not? Diversified approaches in different countries: There are diverse approaches applied in different countries to decide whether the religious marks are eligible for trademark registration or not? Some countries exclude the registration of the religious mark on the ground of 'public order' or 'morality'. For instance, in United States, the Lanham Act (also known as the Trademark Act of 1946) refuses registration to the mark which "consists of or comprises immoral, deceptive, or scandalous matter;"[5] Some countries refuse registration if the mark or sign is blasphemous in nature. Some other countries use the concept of 'distinctiveness' to refuse the registration to certain religious signs.[6] In United Kingdom, an application was made for registration of the trademark "JESUS" in various categories and its registration was refused on the ground that branding which employs words or images of religious significance can have a serious troubling effect on the people whose belief it impinges upon and other who adhere to the view that religious beliefs should be treated with respect in a civilised society.[7] Xavier Morales, a US trade-mark attorney writes that- "If you successfully trademark a religious symbol, the legal protection will only serve to prevent your competitors from using the...

Can Religious Symbols Be Registered As Trademarks?

Kanika Handa

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