Trademark Protection for Buildings – Prateik N 1

Recently for the first time, India’s Trade Mark Registry has assigned an image trademark to Mumbai’s Taj Mahal Palace hotel. This makes the 114-year-old building the first in the country to get such a registration and has joined the elite and small club of trademarked properties in the world which includes the Empire State Building in New York, the Eiffel Tower in Paris and Sydney Opera House.

The scope of “trademark” is not limited to brands and logos. Sound, images, colour combinations, 3D images, and so on can also be registered as trademarks if they meet the definition of “trademark” as per law. Section 2(1)(zb) of the Trade Marks Act, 1999 defines Trademark as “… a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.” Thus, in case of buildings if it can be graphically represented and is capable of distinguishing the goods/services of one person from another then it can be registered as a trademark.

There are a few key reasons for getting such protections. Firstly, it is to protect from the practice of replication known as copycat architecture and to protect the unique design of the building and preserve its uniqueness and heritage. Secondly, to protect the structure from being used in productions that could tarnish and dilute the image. For e.g. usage of the trademark by an alcohol manufacturer may tarnish the reputation of the building and dilute its trademark status. Thus nobody can use the trademarked image for commercial purposes without a license from the company. Selling any object with the trademarked image on it will be considered as infringement action. Also any sort of commercial use will be with the permission and may include the payment of a licensing fee to the company.

Another advantage in case of trademark registration rather than a design or copyright registration is that copyright registration only protects the aesthetic value of the building; design registration only helps in increase of commercial revenue generation. A trademark registration on the other hand however, not only increases the commercial revenue generation through licensing, it also signifies that a particular landmark denotes the source or acts as a source indicator while also protecting the distinctiveness of the landmark. Also, the term of protection of a trademark is much longer than that of a copyright or design protection.

The grant of this trademark has opened a new dimension to the concept of trademarks. India with its vast heritage and culturally significant landmark buildings can certainly benefit out of this precedent. It also serves as an indication of the development of the law of trademark in India.

References

1. https://spicyip.com/2017/06/taj-mahal-palace-hotel-first-building- to-receive-trademark-in-india.html

2. https://www.intepat.com/blog/trademark/can-trademark-building-india/

The Loose end of the Freedom of Press – Surya Narayanan.N 1

“The hand that rules the press, the radio, the screen and the far-spread magazine, rules the country.” – Justice Learned Hand

The position given to the press is that of one equal to the supreme authority. Even in India, we consider the Press to be the fourth pillar of democracy. The way it influences the human brain, is second to none.

A bench led by Justice Patanjali Sastri, in one of the earliest cases just after the commencement of our constitution, Romesh Thapar vs State of TamilNadu, ruled that Right to Freedom of Press is implicit under Article 19(1)(a). And thereafter it is a well-established law that Right to Freedom of Press is enshrined in and by the living document.

With all these read together, an active democracy like ours is null and void without a free-flowing hand criticizing the government of its shortcomings and educating the people of the welfare schemes of the same government. It suddenly seems meaningless to have a debate on whether Right to Freedom of Press is enshrined in Article 19(1)(a).

But the moot question here is, has the fourth pillar balanced the weight on par with the others, or is it going to be responsible for the crash anytime soon?

The Constituent Assembly debate had a member, Shri Damodar Swarup Seth (United Provinces), wanting to amend the proposed draft by including Right to Freedom of Press as an exclusive right, even on acknowledging the fact that it comes under Freedom of Speech and Expression. And there were arguments for the restriction of the scope of the phrases “Public Order”, “Decency”, “Morality”.

Honourable Dr. Ambedkar, while justifying the limitations on civil liberties, had maintained that the Drafting Committee had, instead of formulating civil liberties in absolute terms and depending on the aid of the Supreme Court to invent the doctrine or theory of police powers, has permitted the State to limit civil liberties directly.

The intention was very clear, even during the drafting of our Constitution, that however big a civil liberty be, a clamp on it is necessary. Anything beyond a limit is poison.

This brings us to another famous saying of the same Justice Learned Hand,

“Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.”,
which essentially means that the way of using the liberty lies in how each person uses it. No doubt media as a juristic person or a journalist is free to use it and everything is happening legally. But can “Decency” and “Morality” be restricted by law? Can the journalists media be unbiased? Can the theory of separation of powers apply to the Press too?

Trying to associate this with the question put forth above, it makes us think if the fourth pillar is termite-proof.

In the name of Freedom of Press, we have had more social unrests than the benefits expected out of it. With media trials live 24×7, trying to plant anti-establishment ideas with every opinion and debate, one is made to wonder why the media law of the country is still in a dormant stage. Or is that restricted by Art.19(1)(a)?

At least the Court can dismiss frivolous Public Interest Litigations. But for a article or a news, with no rational basis, with an attempt to colour it with a communal touch or an anti-establishment push, it either takes much time to bring it down or it goes unattended. This has been the story of media all over the world, especially in India, in trying to form public opinion, in a way what a few lot in the media with vested interests want the people to perceive.

Author Samuel Butler rightly said – ” The most important service rendered by the press and the magazines is that of educating people to approach printed matter with distrust.”

One thing was for sure, 19(2) was meant to be the saving clause for 19(1)(a). Is it the other way round now? Is freedom of press an exception to public order, decency and morality?

References

1. II YEAR, BA., LLB., (HONS), SCHOOL OF EXCELLENCE IN LAW, THE TAMILNADU DR.AMBEDKAR LAW UNIVERSITY