Ananya Kumar Srivastava*
Introduction
Recently, the Shree Jagannath Temple Administration (“SJTA”) secured Trademark Protection for the two wordmarks ‘Patitapabana’ under Class 45 (Application No. 7304900), ‘Ananda Bajara’ under Class 45 (Application No. 7280310) and one logo mark, the ‘Neelachakra’. The SJTA has also filed for 26 more marks in addition to these. The reason provided by them is that they are being exploited for commercial purposes. However, the issue that arises here is why trademark something which is not even created by the SJTA itself. The Jagannath temple was built by King Anantavarman Chodaganga Deva in the 12th Century, so there is indeed a need for the protection of the word marks which are being used for years together, but it nowhere gives SJTA authority for restricting the public from using such marks. This blog would be discussing about the very legality of trademarking religious sentiments.
The Context
The issue for the filing of the trademark came into being because another Jagannath temple was built in West Bengal. The Chief Minister of Orissa had argued that the temple should not be called ‘Jagannath Dham’ as it hurts the sentiments of the devotees. Also, since Jagannath Dham is associated with Puri, they should replace the word ‘Dham’ with any other appropriate word like ‘Digha’.
But the reasoning is still not clear because the words that have been trademarked, the applications that have been filed, are not the words on which the controversy arose.
Legality Of Registration
A. Validity Under Trade Marks Act, 1999
The issues with the registration of the trademark of these words are multiple. Firstly, the terms which have been used since the 12th century certainly make them customary terms that have been used in time immemorial.
Section 9(1)(c) of the Trademarks Act, 1999 states that marks which are customary in nature are considered to be an absolute ground of refusal. Further, Section 9(2(b) states the absolute ground for refusal if the “mark hurts the religious susceptibilities”. The words ‘Patitabana’ and ‘Anand Bajara’ are ways of describing Lord Jagannath and, therefore, are normal words which are used in the daily life of a devotee and could possibly hurt the religious sentiments of the devotees. Registering such marks opens up a Pandora’s box of questions such as “Can the deity’s name also be registered?” “Wouldn’t the public be restricted by trademarking such marks?” “Can the administration have the authority over the concerned mark because the mark has been present in the public domain since time immemorial?”
Further, the Preamble of the Trademark Act, 1999 must be read, which states as follows-
“An Act to amend and consolidate the law relating to trade marks, to provide for registration and better protection of trade marks for goods and services and for the prevention of the use of fraudulent marks.”
Now, the issue is that the main focus of the act is for the protection of the goods and services from fraudulent marks. However, the contentious issue that arises here is that all the religious marks that are being registered are said to be for the protection of the cultural heritage of Odisha. If the marks are protection for cultural heritage, how could they be privately registered for the administration? The question that arises is why they could not have been considered for Geographical Indication, because then the whole issue regarding the cultural heritage could have been widely and deeply protected, rather than targeting every individual.
The major intent of Geographical Indications is to recognise the identity of the names and signs which are linked to certain places. It gives recognition and further leverage to the artisans and the community who are making or providing the goods and services. The issue here again is that the terms are said to be registered because, apparently, they are being fraudulently used, but on the contrary, there is no proof of the exploitation, and possibly, how could these terms and logos be fraudulently used? Say, for example, Neelachakra, now if person A puts an image of it on his store, does it make it fraudulent in nature? Not really. This is because that person could be having that logo mark because he believes in Neelachakra. How would SJTA prove that it is a trademark infringement?
Providing the trademark does not protect the heritage of Odisha, because if the devotees actually use those marks the next day, there is a chance of receiving a legal notice for trademark infringement.
The Tirupati Laddus were provided with recognition because there was said to be a severe amount of exploitation. The Tirumala Tirupati Devasthanam had received the Geographical Indication Tag, which is totally fair as it does privatise the Laddus, but rather provides recognition for the preservation and protection. This certainly could have been done by the Registry in the present case. The Geographical Indications could be the only solution which SJTA should have taken into consideration, and even the Trademark Registry should take into consideration.
B. Constitutional Validity
Article 25 of the Constitution provides for “freedom of conscience and free profession, practice and propagation of religion”; the usage of religious words and marks is part of the beliefs. As soon as there is registration, it automatically gives the particular proprietor the exclusive rights for those marks, which leads to their usage. This means that the devotees are precluded from the right to use the logo or even the word, which curbs the right of them. This is directly against the principles of Article 25 of the Constitution.
C. Precedents
There are multiple cases where the courts have dealt with the issue of registration of trademarks involving religious deities and temples. In Amritpal Singh v. Lal Babu Priyadarshi (Supreme Court, 2015), every controversial matter came before the court where the owner of an incense stick brand wanted to trademark “Ramayan”. The court here observed that religious books like “Ramayan” cannot be trademarked. Since the holy books represent cultural heritage and cannot be in any manner monopolised.
Further, Tirupati Laddu GI Tag (2009), the Geographical Indication Tag had been provided to the Tirupati Laddus; now there as well, the controversy arose since the only place where the laddus were being produced only at the Tirumala Venkateswara Temple complex. So, the issue was how could it be the representation of the whole region, since the complex is the sole producer of the particular good? Many devotees have questioned the GI tag on the basis of Section 9(d) of the Geographical Indications of Goods (Registration and Protection) Act, 1999, as it hurt the religious sentiments of a section of society. In such a case, there is indirect privatisation of the laddus since only the complex makes those laddus.
Moreover, in Attukal Bhagavathy Temple (Kerala High Court, 2013), the Attukal Bhagavathy Temple Trust had secured a trademark for the image of their deity and even for the appellation “Sabrimala of Women” under Class 42. The Kerala High Court has upheld it and stated that the Trust has exclusive rights in it. Section 9(2)(b) of the Act deals with the absolute grounds for refusal where matter that hurts the religious susceptibilities should not be considered valid. This mark, too, should be looked into again, as it restricts the devotees from using the image of the deity they worship.
Religious Sentiments
The religious aspect of it must be considered. The Neelachakra is not a mere symbol; it is said to symbolise the Sudarshan Chakra of Lord Vishnu, which in Hinduism represents divine protection and has been widely believed by the people. ‘Patitapabana’ means the saviour of the downtrodden: Patita (sinner or fallen) and Pabana (purifier). On the other hand, ‘Ananda Bajara’ is the complex inside the temple where the ‘Mahaprasad’ is distributed.
The word “Jagannath” literally translates to “Lord of the World”, so the most essential words and marks that resemble the Lord should not be registered. It should not be restricted in its total use and privatised by stating that it isn’t being protected.
The reason for the registration of such a religious mark arises from the question about who actually “owns” the trademark, as discussed before. Moreover, such a trademark registration also restricts the small artisans and cultural performances done by artists for the representation of, say, Neelachakra.
The whole political saga around the naming of the Jagannath temple in Bengal would not in any manner take the identity of the Jagannath Dham in Odisha, and not in any manner hurt any religious sentiment. The Lord, as per Hinduism, is said to be omnipresent, so just by having a similar naming convention nowhere makes Odisha lose its cultural identity.
Analysis
Let us now analyse what are other possible methods of recognition of such marks, and if they are effective for the recognition which the trusts or the administrations are demanding. Since they are registered by the caretakers of the temple, the trustees or the administration.
The trademark, as discussed already, is not one of the least applicable methods for giving recognition since it is more related to privatisation rather than actually giving the due credit. The mark, which was related to the picture of the deity, had been protected under Class 42 for temple services; even the current issue of trademark registration of “Patitapabana” and “Ananda Bajara” is registered under Class 45, which deals with personal services. But again, how is the picture of the deity or usage of the religious terms in any way a cultural activity or any personal service? So, the whole registration process of trademarks is flawed in the context of giving recognition to temples and Lords.
The GI focus more on the region recognition, and it could be a suitable method, as it would stop commercial exploitation and would not in any manner stop the devotees. However, the legal issue that arises in the particular case is that there is no such “good” present, and GI applies particularly to the goods.
The collective marks, on the other hand, are said to be owned by an association of people and to distinguish them from those of other non-members. So again, it cannot be possible as there will be segregation of the marks. The issue is that such different protections are usually provided to the proprietors so that they can protect their marks, which are not already present in the public domain.
Conclusion
The SJTA’s trademarking of ‘Neelachakra’, ‘Patitapabana’, ‘Ananda Bajar’, and filing applications for dozens of other marks show troublesome commodification of the faith. While the reasoning stated, which goes along the lines of Odisha’s cultural heritage to be protected, sounds noble, it definitely seems to be based on flawed foundations.
The marks indeed need to be protected, but not out of any political agenda, but rather out of preservation of Lord Jagannath’s sanctity. The marks are historical in nature and in no manner are or can be owned by the administration. They are not distinctive; they are historical. Trademarking such marks does not lead to the protection of the heritage; it certainly attempts to privatise such marks. By claiming such exclusive rights, the idea of preservation is being liquidated and converted into a restrictive property.
Faith is not a brand; it can be provided with an identity so that it does not get diluted, but it cannot be owned or licensed like a consumer product or a service. There needs to be a clear distinction between commercial exploitation and the prevention of the faith itself. The preservation of the sacred heritage can never be achieved by exclusivity.
Though it is being celebrated currently, in a few years, the situation will not be that simple. Every temple administration would start filing for registration, which could lead to a lot of complexities. The commodification and commercialisation of Gods should definitely not be encouraged.
* The author is a fifth-year B.B.A. LL.B. (Integrated Programme in Law) student at the Indian Institute of Management (IIM), Rohtak. The author may be contacted at ananyaksrivastava12@gmail.com.
This blog reflects the personal views of the author and does not necessarily represent the views of The Policy Chronicle.