India: Sports Law: Use Of The Words "Of India" Or "Indian" In Name Of Sports Bodies Or Federations In India In The Title, Or As A Part Of The Title For Tournaments/Competitive Events

Last Updated: 8 May 2018
Article by Vijay Pal Dalmia, Partner

By Vijay Pal Dalmia, Advocate
Supreme Court of India and High Court of Delhi
Partner Vaish Associates Advocates
Email : vpdalmia@vaishlaw.com
Mobile No. : +919810081079

The (Indian) Emblems and Names (Prevention of Improper Use) Act, 1950 (hereinafter referred as "the Emblem Act") is an act to prevent the improper use of certain emblems and names for professional and commercial purposes.

Section 3 of the Emblems Act provides for prohibition of improper use of certain emblems and names. It states as under:

"3. Prohibition of improper use of certain emblems and names: Notwithstanding anything contained in any law for the time being in force, no person shall, except in such cases and under such conditions as may be prescribed by the Central Government, use, or continue to use, for the purpose of any trade, business, calling or profession, or in the title of any patent, or in any trade mark or design, any name or emblem specified in the Schedule or any colorable imitation thereof without the previous permission of the Central Government or of such officer of Government as may be authorized in this behalf by the Central Government."

From the bare perusal of above section, it is clear that no person is authorized to use any name or emblem as specified in the Schedule for the purpose of any trade, business, calling or profession, or in the title of any patent, or in trademark, without the prior permission of the Central Government or the authorized officer.

Further, Section 4 of the Emblems Act prohibits registration of companies, firms, body of persons, etc. It states as under:

"4. Prohibition of registration of certain companies, etc.: (1) Notwithstanding anything contained in any law for the time being in force, no competent authority shall:

(a) register any company, firm or other body of persons which bears any name, or

(b) register a trade mark or design which bears any emblem or name, or

(c) grant a patent in respect of an invention? Which bears a title containing any emblem or name,

if the use of such name or emblem is in contravention of Section 3.

.........."

From a combined reading of Section 3 and Section 4 of the Emblems Act, it can be adduced that any company, firm or other body of persons bearing a name which is specified in the Schedule cannot be registered without prior permission of the Central Government or the authorized officer.

The Schedule of the Emblems Act, contains the lists of certain names which cannot be used, without prior permission. The relevant item for the present article is item 7, which is reproduced herein below:

"7. Any name which may suggest or be calculated to suggest--

(i) the patronage of the Government of India or the Government of a State; or

(ii) connection with any local authority or any corporation or body constituted by the Government under any law for the time being in force."

It is pertinent to note that the item 7(i) of the Schedule prohibits the use of any name which may suggest or be calculated to suggest "the patronage of the Government of India".

It is important to mention that in order to understand the scope and extent of item 7(i) of the Schedule, several guidelines have been issued by the Ministry of Consumer Affairs, Food & Public Distribution. The said guidelines are reproduced as under:

GUIDELINES UNDER ITEM 7 OF THE SCHEDULE TO EMBLEMS AND NAMES (PREVENTION OF IMPROPER USE) ACT, 1950

I. The name will attract the provisions of Emblems and Names (Prevention of Improper Use) Act, 1950 under item 7 of Schedule, if:

(1) it is identical with the name of any society/corporation or local body which has been set up by the Government of India or State Government under any law for the time being in force.

(2) it gives the impression of the patronage of Central Government or State Government. For example, Indian Council of Agricultural Research (ICAR) is a registered body under the Ministry of Agriculture and Cooperation. Any name beginning with the words "Indian Council of" may mislead the public that it is patronized by the Government.

(3) it too nearly resembles a name of body corporation or local authority set up by Government under any law for the time being in force. For example, "Indian Institute of Mass communication" is an autonomous body under Ministry of Communication. Names like Institute of Mass Communication may give the impression that the said society is also patronized by the Central Government. Here it should be kept in view whether any other body carrying same kind of activities with similar name is in existence.

(4) it connotes Government's participation or patronage unless circumstances justify it. Certain words in a name may give the impression of Government's patronage. Such words are "National, National Institute of, - National Council of, University, Indian Institute of, Indian Council of, etc." This list is illustrative and not exhaustive.

........"

The para I (2) and para I (4) of the above guidelines, which state that any name which gives the impression of the patronage of Central Government or connotes Government's participation would fall under item 7(i) of the Schedule. The guidelines also give the examples of words like "Indian Council of....", "National", "National Institute of....", "National Council of...", "Indian Institute of....", which would fall in the category of the prohibited names, which would require prior permission of the Central Government or the authorized officer. The guidelines clearly state that the list of examples is only an illustrative list.

It is important to note that even though the guidelines do not specifically use the word "India" or "Indian", still the use of words "India" or "Indian" would require prior permission from the Central Government or the authorized officer taking into account the object of the Emblems Act and active enforcement of the same by the authorities.

National Sports Development Code of India, 2011: he National Sports Development Code of India, 2011 discusses the consequences of the violation of the guidelines laid down by the Government and provides that if any national sports federation fails to comply with such guidelines then, it shall not be allowed to use the word "India" in its name as it suggests the patronage of the Government of India. Further, clause 1.5 of the National Sports Development Code of India, 2011 (https://yas.nic.in/sites/default/files/File918.compressed.pdf) lays down that the National Olympic Committee (NOC) i.e., the Indian Olympic Association (IOA), and the National Sports Federations (NSFs); needs to comply with the guidelines issued by the Government from time to time if they are desirous of regulating and controlling sports in India, or using the name of India or representing India within or outside India.

In the National Sports Development Code of India, 2011(https://yas.nic.in/sites/default/files/File918.compressed.pdf) reference of the Emblems Act has been given for refusing the use of word "India". The relevant portion is also reproduced hereinunder:

"3.6. The National Sports Federations who have the recognition including the annual recognition of Government of India in the Ministry of Youth Affairs and Sports, enjoy various facilities/concessions provided by the Government of India. However, failure to comply with the Government Guidelines issued from time to time could result in one or more of the following consequences for the NSF concerned:-

1) ........

2) Shall not be allowed to use the word "India" in its name since inclusion of the word "India" suggests the patronage of Government of India. (Reference: The Emblems and Names (Prevention of Improper Use) Act, 1950 which prohibits the use of India in the name of any entity without prior approval of the Government, as it may suggest or be construed to suggest the patronage of the Government)"

From the above clause 3.6 of the Code, a necessary corollary can be drawn that only recognized national sports federations are allowed to use the word "India" or "Indian" in their title or in any event controlled by them.

In the case of South India Textiles and Ors. Vs. Government of Andhra Pradesh and Ors1, decided by the High Court of Andhra Pradesh on 10.04.1987, an application was filed for registration of a firm under the name of 'South India Textiles'. The Court allowed the name "South India" and held that:

"The use of the word 'South India' does not reflect upon any State Government or the Government of India nor signifies any patronage. South India is not a State. It is a common name for many a firm or proprietary concerns. Therefore, by no stretch of imagination it can be said that it is improper use within the meaning of Section 3 of the Emblems Act."

Even in the case of 'Goenkarancho Ekvot', a Society registered under the Societies Registration Act, through its President, Ms. Suman Kurade Vs. Union of India (UOI), through its Secretary, Ministry of Home Affairs and Ors.2, decided by the High Court of Bombay on 21.06.2007, which involved the use of the word "Goa" in relation to a product/trademark "Goa 1000 Gutka". The Court allowed the use of the word "Goa" and held that:

"8. The cumulative reading of the above provisions shows that a person is prohibited from using in his trade activity any name or emblem specified in the schedule. Clause 4 of the schedule contemplates that name, emblem or official seal of the Government of India or of any State or any name which may suggest patronage of the Government of India or the State Government cannot be used by a person. Name of a place, thus, is not even mentioned in the schedule. It is the name, emblem or seal of Government of any State which cannot be used by any person in his trade activity. This is permissible, provided previous permission of the Government or such officers specified by the Government is taken by the person concerned.

9. We also are unable to understand the argument that the use of the word 'Goa' is capable of being understood as if the product was having the patronage of the State Government. The Government of a State cannot be synonymous to the name of a place. The contention is based upon misconception of law, and no principles of interpretation can be applied to substantiate this contention."

However, in the case of Delhi High Court titled All India Defence Services Advocates Association Vs Union of India3, decided on 10th April, 2012, wherein registration of society titled "All India Defence Services Advocates Association" was in question. The Hon'ble Court did not allow the use of the word "All India" and held that:

"7. The reasoning of the respondent no.1 is not found to be perverse so as to be interferable in exercise of powers of judicial review. On the contrary the petitioner has been unable to show any need for insistence on registration as a society with the said name only. The petitioner has also been unable to show any prejudice or injury which it may suffer if adopts any other name. The use of the words 'All India' in conjunction with the words 'Defence Services' has the potential of mischief within the meaning of Para 7 of the Schedule to the Act aforesaid."

It is also important to point out that in the above judgment, the Respondent, i.e., Ministry of Food and Consumer Affairs, Government of India, has also taken a stand that any name containing the words "All India" cannot be registered.

In view of the above judgments, it is clear that the different High Courts have taken different stands with respect to the interpretation of the term "patronage of the Government of India". It is pertinent to note that these different judicial interpretations are based on different facts and circumstances, and may not have universal applicability.

In light of the above discussion and despite the conflicting views of the High Courts, the author is of the opinion that the use of the words "India" or India" are barred as per the present law and prior permission of Government of India shall be obtained to use the expressions "Of India" or "Indian" in the title or as a part of the title for its tournaments/competitive events, and if the circumstances of a case justify the use of the word "India" or "Indian", then the Government has to give the permission to use these words.

Footnotes

1. AIR 1989 AP 55

2. AIR 2007 Bom 184

3. WP(C) NO.16789/2006

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