Reading List: morality and trademarks in South Asia

Zehra Jafri, One Sari, Three Different Ways to Drape It: Trademarks, Religion, Language, and Morality in Post-Colonial India, Pakistan, and Bangladesh, 40 UCLA Pacific Basin Law Journal 127 (2023)

 Abstract:

Pakistan, India, and Bangladesh were all established on a sense of wanting to be a majority in a nation where they were once “othered,” be it by the British, Hindu majority, or Urdu-speaking majority. As a result, religious independence and mother-tongue/linguistic independence are highly valued in these countries, and are the context by which the morality of trademarks within the borders of these countries are assessed. Notions of free speech traditions and political ideologies that also color traditions are discussed, as they also run abreast trademark law. Although these three countries once emerged from one land, they carry differences as distinct and rich as the cultural and religious historical tensions that define them. Each sought to create a space where their cultural and religious identities were represented fairly. As thus, it is no surprise that religion is such an important consideration that it was codified into each country’s trademark law. 

This paper aims to illustrate what each country deems as running afoul to notions of morality and religious susceptibilities, and how that may have changed over time with politics and other social factors. The factors that may have influenced these definitions is assessed in depth by country, with homage to the political structures and free speech traditions within which they are nested. A framework of what would and what wouldn’t qualify as a registrable trademark under the morality bar is posited through an analysis of government guidelines on registering trademarks, case law, and a comparative analysis of certain marks that were treated one way under one country’s standard but could be treated differently under different standards from other countries.

 

Some interesting passages (footnotes omitted):

[U]nder Section 9(2)(c) [of Indian trademark law], a mark is prohibited for registration as a trademark if it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India. The Draft Manual further explicitly acknowledges that it is a common trade practice in India to use names and pictures of religious deities or symbols as trademarks. Accordingly such use is not regarded per se as offending religious sentiments of any class or section of public. However, such use in relation to certain goods may offend the religious sentiments of the people. For example, the use of the names or device of deities or religious heads on footwear will be considered distasteful and will be open to objection. Similarly, use of Hindu Gods on beef or meat products or use of names of Muslim saints on pork products would offend the religious feeling of respective sections of the public and may attract objection under this section. … The Draft Manual goes on to list illustrative examples. The use of religious symbols (like OM) or names (e.g., Jesus) as trademarks is likely to undermine/offend religious value and sentiments. Names of gods or goddesses which are also used as personal names may be considered as personal names for registration purpose, unless accompanied by the device of such god or goddess.

 

… Not included in the explicit list of unauthorized religious names in the trademark guidance are Islamic marks. All of the explicitly prohibited religious deities and figures are Hindu, Jain, and Sikh. By including only Hindu, Sikh, and Jain names in the official guidance of prohibited marks, India may also project a certain vision of Indian identity in line with the “pseudo-secularism” and Hindutva ideology espoused by Modi and the BJP, which has its roots from the religious tension harbored from the partition between India and Pakistan.

 

The author notes that marks containing “Allah” are, however, apparently routinely refused.