Introduction
In the vast tapestry of India's culinary delights, namkeen (salty or savory snack) holds a special place. The country's love for bold flavours extends beyond the kitchen and into their branding as well. One such example is the recent controversy surrounding the trademark "Chutiyaram", a snack brand name that stirred the debate between legality and morality. The controversy began when an application filed by Sadhna Goswami with the Indian Trade Marks Registry to register the mark under class 30 (food products) was accepted by the Delhi Trade Marks Office. This acceptance raised eyebrows among the intellectual property law community as well as the general public.
The primary point of contention was that the trademark closely resembled a Hindi derogatory slur. Intellectual property law practitioners and the public alike were shocked as to how the Registry could allow such a moniker, despite the term's offensive connotations. Hearing this uproar, the Registry rescinded its acceptance. As a result, Ms. Goswami filed a written response on the premise that the term holds cultural significance in vernacular Hindi. In this backdrop, it becomes imperative to analyse the interplay between Section 9(2)(c) of the Trade Marks Act, 1999 and respecting linguistic sensitivities.
What Qualifies as a Trademark?
As per Section 2(1)(zb) of the Trade Marks Act, 1999, a trademark is a mark capable of being represented graphically and capable of being distinguished from other goods and services. In simple terms, it refers to a symbol, term or a phrase that distinguishes one product from other similar products. In India, the registration and protection of trademarks is governed by the Trade Marks Act, 1999 (hereinafter "the Act"). A trademark may be refused on absolute grounds of refusal, as per Section 9 and relative grounds of refusal as per Section 11 of the Act. Specifically, Section 9(2)(c) prohibits the approval of trademarks which are scandalous or obscene in nature. Clause (b) prohibits marks which are likely to hurt the religious susceptibilities of citizens of India. Hence, these sections can be invoked if religious sentiments or morality is violated.
Chapter III of the Act specifies the procedure for registration of a trademark. If a trademark is 'accepted and advertised', it means that the application has passed the initial examination stage without any objections. Examination is done in two stages. Firstly, an Examiner prepares the examination report, which is then reviewed by the Examination Controller. The examiner either does not find any objection or resolves concerns, if any. After this stage, the mark is published in the Trademark Journal to give the public a chance to raise objections. If objections are not raised within 4 months, a Registration Certificate is issued. In case of any objections, the Applicant must defend the validity of the mark through legal proceedings. There are several steps involved in the process of registration of a trademark. The above is merely a brief summary and does not detail the entire process.
Facts Giving Rise to the Issue
Initial Acceptance
The Applicant Ms. Sadhna Goswami filed for the registration of the trademark 'Chutiyaram', a namkeen brand, under Class 30 of the Act. The Delhi Trademark Office had initially accepted her application. The Senior Trademark Examiner remarked that the instinct mark consisted of two arbitrary words, Chuti and Ram. Hence, it was distinctive and had no direct reference to the product. Thus, objection under Section 9 of the Act was waived and the mark was accepted.
Subsequent withdrawal
Concerns sparked as to how the mark passed the scrutiny of Section 9(2)(c) which prevents the registration of scandalous, obscene or immoral trademarks. Further, the mark was also passed despite no representation in four hearings. A day after publication in the Trademark Journal and two weeks after the initial acceptance, the Trade Mark Registry withdrew its acceptance citing an error. In this order, it was stated that the mark was open to objections under Sections 9 and 11, as it does not meet the criteria under the same Sections. The Registrar scheduled a hearing and sought to withdraw the acceptance, as per Section 19 of the Act. Subsequently, the application must now go through a fresh review process, based on which it will either be rejected or proceed further.
Written Response of the Applicant
The Applicant filed a written response before the Registry contending that the withdrawal of the acceptance was not legally justified. It was argued that the withdrawal was arbitrary as it was based on a "purported and misconceived ground of obscenity". Through the response, the Applicant sought to prove that the mark holds historical and cultural significance. As a result, it is not obscene and is legally tenable. Further, the withdrawal was a result of pressure from the media and a systemic bias against vernacular Hindi. The Applicant alleged that a "reckless media trial" was conducted and that the Registry succumbed to the demands of various media outlets. The response asserted that the Registry must function as an independent body upholding the sanctity of the Trade Marks Act, 1999 and must be free from external influence.
It was highlighted that the term 'Chutiyaram' holds spiritual significance. 'Chutiya' is a term derived from the Sanskrit word 'Choti' meaning sacred tuft of hair and 'Ram' referring to Lord Rama. Hence, it does not qualify as an offensive term. It was also argued that when trademarks such as Lauda (3986929) and Pussy in Boots (2056246) are registered, why must a culturally significant term be denied acceptance. The given examples could also be perceived as offensive and obscene. Hence, this grossly violates the Applicant's Fundamental Fights under Articles 14 and 19(1)(g). Lastly, the lack of a Hindi module in the Registry's digital filing system was characterized as a "colonial hangover".
Analysis
Like any other matter, this issue presents two perspectives. On one hand, the Registry was right in withdrawing the approval of the trademark. This will prevent any disrespect of religious sentiments and upholds the essence of Section 9(2)(c). On the other hand, the Registry has also erred in its withdrawal. It has altogether ignored the possibility of a deeper spiritual meaning to the term and succumbed to media pressure in the process of decision making.
The Registry was right in withdrawing its approval due to the following reasons. Firstly, the Trademark Registry's decision to withdraw under Section 19(2) of the Act is a step in the right direction. It reflects a balance between individual rights and societal morality, as mandated by the law. Secondly, Section 9(2)(c) of the Act prohibits scandalous or obscene marks. The term 'Chutiyaram' despite its historical roots, is widely recognized as a vulgar term. Hence, the Registry was right in acknowledging that it made an "error" accepting the mark initially. As held in Ranjit Udeshi v. State of Maharashtra (1965), obscenity must be assessed based on societal impact. Thirdly, the Registry's decision reflects procedural diligence. It acted swiftly in mitigating potential public outcry. The media merely pointed out a mistake rather than dictating the Registry's decision. Hence, one cannot state that the withdrawal was a result of pressure from the media.
On the other hand, the Registry was wrong in withdrawing its approval due to the following reasons. Firstly, the decision to withdraw was one that was arbitrary and procedurally flawed. It highlights the grave effects of media-driven overreach. Section 19 mandates prior notice and hearing before reversing an accepted application. This procedure was entirely ignored in Ms. Sadhna's case. Labelling the initial acceptance an "error" without any reason or evidence is outright injustice. Secondly, the Senior Examiner's order was reasoned as it recognised the distinctive nature of the mark.
Thirdly, the Registry succumbed to media sensationalism rather than adhering to the Act. As held in Aveek Sarkar v. State of West Bengal (2014), it is important to apply the 'community standards' test while gauging obscenity. The Apex Court held that a trademark or term must be read holistically and must not be scrutinized by isolating individual words. The Registry has failed to apply this test. If it had done so, such a hasty withdrawal would not have occurred. Lastly, the withdrawal affects the Applicant's fundamental rights under Articles 14 and 21. This decision restricts trade and discriminates against Hindi vernacular marks. The English-only filing system further exacerbates this problem. As stated previously, trademarks such as 'Lauda' and 'Chutzpah' have been registered. This highlights the inconsistency of the Registry in applying Section 9(2)(c).
Concluding Remarks
The 'Chutiyaram' controversy highlights the flaws in the Indian Trademark regime. While it is essential that obscene or scandalous remarks are not approved, the criteria for decision making must be consistent. Media sensationalism cannot influence the decisions of the Registry. This controversy calls for a reflection. A reflection that will rectify the procedural inconsistencies exhibited by the Registry. Unless these concerns are addressed, India's intellectual property regime will suffer from credibility issues.
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