Madras High Court
R.R.Santosh Sriram vs Senior Examiner Of Trade Marks on 15 March, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
(T)CMA(TM) No.97 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 02.02.2024
Pronounced on : 15.03.2024
CORAM : JUSTICE N.SESHASAYEE
(T)CMA(TM) No.97 of 2023
(OA/28/2020/TM/CHN)
R.R.Santosh Sriram ... Appellant
Vs
Senior Examiner of Trade Marks
Intellectual Property Office
Intellectual Property Office Building
G.S.T. Road
Guindy, Chennai - 600 032. ... Respondent
PRAYER : Transferred Civil Miscellaneous Appeal filed under Trade Marks
Act, praying to dismiss the order of the learned Senior Examiner of Trade
Marks dated 13.01.2020 in Application No.3922351, and subject trade mark
be allowed to proceed to registration.
For Appellant : Mr.A.K.Rajaraman
For Respondent : Mr.N.Ramesh
Senior Panel Counsel
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https://www.mhc.tn.gov.in/judis
(T)CMA(TM) No.97 of 2023
JUDGMENT
This appeal is preferred challenging an order of the respondent dated 13.01.2020 rejecting appellant's application to register its mark 'BRAHMABREWS' as a word mark under clause 43 (as regards restaurants, cafeteria, etc.). The Trademark Registry refused registration under Section 9(2)(b) on the ground that the word 'Brahma' is likely to hurt the religious sentiments of Hindus. This order is now under challenge in this appeal.
2. The learned counsel for the appellant submitted that the word 'Shivas' has been registered as a mark under clause 33 intended for alcoholic beverages. If it does not hurt the religious sentiments of the citizen, then 'Brahma' can never and ever hurt any religious sentiments.
3. Placing reliance on the authority of the Hon'ble Supreme Court in Lal Babu Priyadarshi Vs Amritpal Singh [(2015) 16 SCC 795], the learned counsel for the respondent submitted that the Hon'ble Supreme Court in the aforesaid authority has imposed an embargo against the use of any names of a holy or religious books like Quran, Bible, Guru Granth Sahib or Ramayan as a trade mark for any goods or services.
2/6 https://www.mhc.tn.gov.in/judis (T)CMA(TM) No.97 of 2023 4.1 The merit of the rival submissions was considered in the light of the ratio in Lal Babu Priyadarshi Vs Amritpal Singh [(2015) 16 SCC 795]. What however, may have to be distinguished here is that the names of any Hindu God per se may not be adequate to bring it within Sec.9(1)(b) of the Act, and in that sense they cannot be equated to the names of the holy religious scriptures. In the instant case, respondent has treated the word 'Brahma' in the mark “BrahmaBrews' as the name of the Hindu God, but it needs to be underscored that in this country, the names of Hindu Gods are being used to name those who profess Hinduism. Now this has to be considered in the context of an individual's choice to adopt a trade name. Anyone who engages in any trade has the freedom to choose one's mark, and its selection need not be based on any objective criterion. Accordingly, one may select a trade name based on one's social or religious sentiments, and it may be difficult to interfere with the reason for one's choice of the trade mark. To illustrate, someone may want to adopt the word 'Ramakrishna' with a distinguishable device as its trade name because Ramakrishna may be the name of his father or his child. Very obviously, the word 'Ramakrishna' is composite name of two Hindu Gods, still for the owner of the mark it represents his father or child's name and that his preference or choice to use 3/6 https://www.mhc.tn.gov.in/judis (T)CMA(TM) No.97 of 2023 the same as part of his trademark would have its basis in his sentiment towards them. Therefore, if the Registrar takes up a position not to register any trade mark with the names of Hindu Gods, then the shelf may well be half empty for an adopter of a trade mark to choose the mark from. 4.2 There is another perspective. No matter what the trade name/trade mark is, its reputation is not built by its owner, but by the consumer of his/her goods or services, since the trade name or a trade mark only establishes a connect between the consumer and the good or services that it intends to differentiate. Therefore, these are issues which will find their eventual solution socially. If however, the Registrar of the trade marks brings in limitation as to the choice of the mark based on his religious perception, then it is quite possible that such limitation may be an expression based on his personal values, something of which the Registrar must be conscious of. While exercising his power under Sec.9, it would therefore, be advisable for the Registrar to invest objectivity to what he does in preference to his personal perceptions. Interestingly enough, neither side has filed any copy of search report to ascertain if the Trade mark Registry has taken a policy decision not to register any trade mark with the names of Hindu Gods. 4/6 https://www.mhc.tn.gov.in/judis (T)CMA(TM) No.97 of 2023
5. This Court considers that to reject the appellant's application at the preliminary stage, even during examination, may not be appropriate. Hence, this Court decides to set aside the impugned order of the respondent and to remand the matter back to the Trade Mark Registry.
6. In the result, this appeal is allowed and sets aside the impugned order of the respondent dated 13.01.2020, and remand the matter back to the Trade Mark Registry for denovo consideration. No costs.
15.03.2024 Index : Yes /No Speaking order / Non-speaking order ds To:
The Senior Examiner of Trade Marks Intellectual Property Office Intellectual Property Office Building G.S.T. Road Guindy, Chennai - 600 032.
N.SESHASAYEE.J., ds 5/6 https://www.mhc.tn.gov.in/judis (T)CMA(TM) No.97 of 2023 Pre-delivery Judgment in (T)CMA(TM) No.97 of 2023 15.03.2024 6/6 https://www.mhc.tn.gov.in/judis