- Purpose: An act to prevent the improper use of certain emblems and names for professional and commercial purposes.
There are number of instances that come to light in India and abroad on the use of Indian National Flag and emblem and of the names or pictorial representation of Mahatma Gandhi and other national leaders, for commercial and trade purposes and in a manner likely to offend the sentiments of the people. The statutes prevailing before the Emblems and Names (Prevention of Improper Use) Act, 1950:
- Trade Marks Act, 1940
- Patents and Designs Act, 1911
- Merchandise Marks Act, 1889
- Companies Act, 1913
- Applicability: The act extends to the whole of India, and the provision of this act applies to citizens of India outside India.
- Constitutional Validity:
- Prohibition of improper use of certain emblems and names:
- United Nations Organisation
- World Health Organisation
- The Indian National Flag
- The Government of India
- The Government of any State
- St. John Ambulance Association (India)
- St. John Ambulance Brigade (India)
- President of India
- Governor of a State
- Republic or Union of India
- Any name which may suggest the patronage of the Government of India, or the Government of a State or connection with nay local authority or any corporation or body constituted by the Government under any law
- United nations Educational, Scientific and Cultural Organisation
- Rashtrapati Bhavan, Raj Bhavan
- Chhatrapati Shivaji Maharaj
- Mahatma Gandhi
- Pandit Jawaharlal Nehru
- Shrimati India Gandhi
- Prime Minister of India
- Medals, badges or decorations instituted by the Government or the miniatures or replicas thereof or the names of such medals, badges or decorations or of the miniatures or replicas thereof
- International Civil Aviation Organisation
- The word ‘Interpol’ which is an integral part of the International Criminal Police Organisation
- World Meteorological Organization
- Tubuerculosis Association of India
- International Atomic Energy Agency
- Ashok Chakra or Dharma Chakra
- Parliament, Legislature of any State, Supreme Court, High Court of any State, Central Secretariat, Secretariat of any State Government, or any other Government office or building occupied by any of the aforesaid institutions
- Ram Krishna Math and Mission
- Sri Sarda Math and Ramkrishna Sards Mission
- Bharat Scouts and Guides
- International Olympic Committee
- National Youth Emblem
- Prohibition of registration of certain companies, etc: No competent authority shall register name or trade mark or design or grant a patent to any company, firm, or other body of persons which bears any emblem or name in contravention to the provisions of this Act.
- Legal frame work
- Ministry of Corporate Affairs initiatives:
- Section 20 of the Companies Act, 1956 states that companies not to be registered with undesirable names.
Ministry of Corporate Affairs (MCA) had issued General Circular No.45/2011 dated 8th July, 2011 which supersedes of all the previous circulars and instructions issued by MCA, Government of India regarding name availability. It is mandate that the proposed name(s) is/are not in violation of the provisions of Emblems and Names (Prevention of Improper Use) Act, 1950 and to this extent a declaration in eform 1A at page no.5 was included. The applicants and Registrar of Companies are advised to adhere guidelines while applying or approving a name:
- Previous sanction for prosecution: No prosecution for any offence punishable under this Act shall be instituted, except with the previous sanction of the Central Government.
- Power of the Central Government to amend the schedule & to make rules: The Central Government may, by notification in the Official Gazette, add to or alter the Schedule or make rules to carry out the purposes of this Act.
- Penalty: Any person who contravenes the provisions of this act shall be punishable with fine which may extend to Rs.500/-.
These acts are not adequate to prevent these abuses. The present act seeks to prevent the improper use of these names, emblems, etc., for the purpose of trade, business, calling, profession, patent or design and to impose a penalty for misuse of emblems, etc., specified in the Schedule and empowers the Central Government to make additions, and amendments in the Schedule as and when necessary.
The Supreme Court has upheld the constitutional validity of this Act on the ground that the Act, read as a whole, does not deal directly or substantially with trade or commerce and hence is not in conflict with Right to Equality (Article 14). The Act being regulatory in nature imposes reasonable restrictions and hence does not interfere with the Right to practice any profession, or to carry on any occupation, trade or business (Article 19(1) (g)) as decided in M/s Sable Waghire vs Union of India.
No person can use, for the purpose of any trade, business, calling or profession, or in the title of any patent, in any trade mark or design, any name or emblem or official seal or pictorial representation or any colourable imitation thereof of the following without the previous permission of the Central Government:
The Ministry of Consumer Affairs is responsible for ensuring non-violation of the provisions of this act. The Ministry handles around 1,000 complaints annually and has recently issued notices to the hospital "Karnataka Health Institute" and Delhi-based historians society "Indian History Congress" asking them to change their names.
The government is mulling hiking penalty for improper use of names and emblems conveying state patronage or ownership for the purpose of professional and commercial gains to Rs 5,00,000/-. Besides huge fine, the government is also looking at amending other clauses of act to introduce more stringent measures to punish the offenders.