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I. Facts of the case:
The Appellant, trading as M/s. Om Perfumery, made an application to the Registrar of Trade Marks to register a trade mark by name “RAMAYAN” with the device of crown in class 3 in respect of incense sticks (agarbattis, dhoops) and perfumeries etc., The Respondent was a dealer for sale of the products of the Appellant and was also trading as M/s. Badshah Industries. The Respondent filed a Notice of Opposition to oppose the registration of aforesaid trademark claiming that the impugned mark, being the name of a religious book, cannot become the subject matter of monopoly for an individual.
The Assistant Registrar of Trade Marks, after holding that the impugned trade mark consists of device of crown and the word “RAMAYAN” is capable of distinguishing the goods and is not included in the list of marks not registrable under the Act, by order, had dismissed the opposition filed by the Respondent. Being aggrieved by the said Order, the Respondent herein preferred an Original Appeal before the Board and the Board by impugned order, set aside the order passed by the Assistant Registrar of Trade Marks.
Aggrieved, the Appellant filed this appeal by way of Special leave.
The Supreme Court observed that Section 9 of the Act stipulates that a mark shall not be registered as trademarks if (i) it deceives the public or causes confusion, (ii) it contains or comprises of any matter likely to hurt the religious susceptibilities, (iii) it contains scandalous or obscene matter, (iv) its use is prohibited. It further provides that if a mark consists exclusively of (a) the shape of goods which form the nature of goods themselves, or (b) the shape of goods which is necessary to obtain a technical result, or (c) the shape which gives substantial value of the goods then it shall not be registered as trade mark.
From the Eighth Report on the Trade Marks Bill, 1993 submitted by the Parliamentary Standing Committee, the Court found that the Committee expressed its opinion that any symbol relating to Gods, Goddesses and places of worship should not ordinarily be registered as a trade mark. This report was presented on 21.04.1994. When the report was presented, the Appellant’s trade mark had not been registered and the application filed by the Respondent herein opposing its registration was dismissed only on 31.03.2004 by the Assistant Registrar of Trade Marks.
The Court further observed that “RAMAYAN” represents the title of a book considered to be a religious book of the Hindus in our country. Thus, using exclusive name of the book “RAMAYAN”, for getting it registered as a trade mark for any commodity could not be permissible under the Act. If any other word is added as suffix or prefix to the word “RAMAYAN” and the alphabets or design or length of the words are same as of the word “RAMAYAN” then the word “RAMAYAN” may lose its significance as a religious book and it may be considered for registration as a trade mark.
The Court dismissed the appeal and found that the Appellant had applied for registration of the word “RAMAYAN” as a trade mark instead. The Court also found that in the photographs, after adding “OM’s” to the word “RAMAYAN”, at the top and in between “OM’s and RAMAYAN”, the sentence, “Three Top Class Aromatic Fragrance”, is also written. Thus, it is not a case that the Appellant is seeking the registration of the word “OM’s RAMAYAN” as a trade mark. Further, from the photographs, the Court found that the photographs of Lord Rama, Sita and Lakshman are also shown in the label which is a clear indication that the Appellant is taking advantage of the Gods and Goddesses which is otherwise not permitted.
There are many holy and religious books like Quran, Bible, Guru Granth Sahib, Ramayan etc., to name a few. The answer to the question as to whether any person can claim the name of a holy or religious book as a trade mark for his goods or services marketed by him is clearly ‘NO’.
Moreover, the appellant has not been able to establish that the word “RAMAYAN” for which he has applied the trade mark had acquired a reputation of user in the market in as much as, we find that there are more than 20 traders in the city using the word “RAMAYAN” as a mark for the similar products and also in different parts of the country.
On a perusal of the artistic work said to have been created, there is no doubt that both the marks are identical in design, colour, scheme and the reproduction of photographs is in such a manner that an ordinary buyer would reasonably come to a mistaken conclusion that the article covered by one brand can be the article covered by the other. Both the parties have claimed to be manufacturing units engaged in certain goods.
Further, the respondent herein claimed that though he had been in the business since 1980, he had developed and published theartistic work in 1986 and has also been using the mark as a trademark and claiming use since 1986 whereas the appellant herein claimed use of the trademark since 1987. However, by filing an application to the concerned authority, the appellant has claimed the use since 1981. Further, in various pleadings in the Title Suits filed by the respondent herein, the appellant herein has admitted the use and publication of the artistic mark of the respondent before the date of claim of the first use by the appellant, that is, 1987. From these facts, it is clear that the respondent herein was using the artistic mark earlier in point of time to that of the appellant herein.
In view of the foregoing discussion, we do not find any irregularity in the order passed by the Board dated 10.01.2005, consequently, the appeal fails and is accordingly dismissed. However, the parties are left to bear their own costs.
The intent of the Supreme Court is quite clear – religious teachings and the names of deities belong to all, therefore no one can claim monopoly over the use of these names.