Controller General's affidavit in 'Attukal deity trademark' case supports the temple trust

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Controller General of Patents, Designs & Trademarks filed

, on 2nd december, their counter affidavit before Kerala High Court in the 'suo motu' case against the grant of trademark on the picture of attukal deity WP (C) No. 14153 of 2009 along with the petition vide CM. Appl. No. 6041 of 2009 to condone delay in filing the affidavit . The court took it on file on Tuesday, 8 December 2009. Some of the interesting statements in the affidavit A) Two applications bearing the trademarks the (1) "Sthreekalude Sabarimala" in malayalam under No. 1420799 and (2) a picture of the deity Attukal Bhagavathy under No. 1420800 were filed by Attukal Bhagavathy Temple Trust (Registered under the Charitable Societies Act, 1955), with a user claim of 1980 & 1960 respectively. The services ought to be protected are "temple services, social services, welfare services and cultural activities" under Class 42 of Nice Classification. Since the applicant's marks have acquired a distinctive character in relation to their activities and services related to the temple as a result of long and uninterrupted use, both applications were accepted under proviso to section 9(1) of TM Act. B) Trade Marks Act, 1999 does not prohibit or restrict the registration of marks that contains the picture of deities. It is only the Emblems and Names (Prevention of Improper Use) Act, 1950 which contains prohibition as to the registration of certain marks and the directions of the central government through notification to the Trademark registry under the Trademarks Act not to register the listed marks. The "picture of the deity of Attukal Bhagavathy Temple" and the appellation of "Sthreekalude Sabarimala (Sabarimala of Women)" has not been prohibited under either of the above said enactments. Therefore, the Trade Marks Registry in its wisdom has rightly allowed the registration of said marks. C) Trademarks registry has not committed any mistake in the registration of the marks in issue, as alleged by the petitioner. By the registration of the trademarks, religious feelings of no person have been hurt. .................................................. Further, the Registry did not lack in wisdom to consider whether the marks in issue would affect the religious susceptibilities of any class or section of the citizens of India. The registry only when it has got satisfied itself that the marks in issue does not conflict with the provisions of Section 9(2)(b) of the Trade Marks Act, accepted the application for registration of the marks concerned. D) All along in the history of trademark registrations, one can find several registration of marks that contain the pictures or names of the principal deities belonging to various well known temples. E) Why the trustees of a temple should not protect its property whether corporeal or incorporeal ? The misuse of the picture of the deity for any purpose will tarnish the reputation of the temple. The registration of the picture of the deity or a name is to prevent fraudulent use of them by unauthorized persons. It is similar to a fencing to a piece of land or a door to a building. No reasonable man would say that a temple property or an idol be kept open and uncontrolled to enable others to use and misuse. F) No where in the Trade Marks Act, it is said that a Temple Trust should not carry on business for profit or that it should not get its name or the pictures of the deity be registered as a trademark. G) There are many registered marks containing the picture/symbol of various God and Goddesses in relation to different goods such as Goddess Saraswathi, Goddess Lakshmi, God Vinayaka/Ganesh, God Shiva etc. H) The temple trust claimed proprietorship on the picture of the deity and the expression "Sthreekalude Sabarimala (Sabarimala of Women)" in respect of temple services, social services, welfare services and cultural activities in their application for registration and the Trade Marks Registry did not see malafides or illegalities in the applications and granted registration in accordance with the law.

Controller General's affidavit in 'Attukal deity trademark' case supports the temple trust

By: R.S. Praveen Raj

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