National Icon or Protected Business Name ?, Marketing & Advertising News, AND BrandEquity

By Carol Goyal

The Gujarat state government last month won a trademark case over the use of the word “Sardar” to symbolize Indian iron man Sardar Vallabhbhai Patel. Gujarat State Fertilizer and Chemicals Limited (GSFC), a PSU of the Gujarat government, filed a lawsuit against Dashrath Patel of Indian Agro Chemicals last year. One of Indian Agro’s units is located at Dholka GIDC and has been sued for using the PSU’s “Sardar” trademark. This industrial unit named its fertilizer “Sardar Seven Star”. The Economic Times Brand Equity had covered the development on November 3, 2021.

The GSFC filed a trademark case with the Ahmedabad Rural Court in Mirzapur in September 2020, claiming that it had trademark rights to the word “Sardar” because it had used it for its various fertilizers and chemicals for many years. years. ‘Sardar’ was registered in 1967 by the GSFC.

This is not the first time that GSFC has been in a dispute over the use of the word / brand name “Sardar”. A few years ago, GSFC sued Sardar Biochem Fertilizer in city court over the same issue. But company owner Ashok Patel argued that Sardar Vallabhbhai Patel was from the Patidar community. Patidars can use the word “Sardar” because he was a famous member of their community and the appellation belonged to all of society and cannot be appropriated or owned by the GSFC alone or the government of Gujarat as they had no right of ownership over the chief. Ashok Patel sadly passed away last year and the GSFC withdrew his case.

Indian Agro was more inclined towards a settlement of the GSFC case and immediately accepted GSFC’s request. It removed the word “Sardar” from its brand name and replaced it with “Sarkar”. Later, the company catapulted itself even further and also removed “Sarkar” from its brand name because it connoted “government,” which may have created new problems.

Indian Agro may have succumbed to the might of the GSFC and the government of Gujarat, but the commercial use of the word “Sardar” raises a very interesting question: Does the state have all the national icons by default and right ?

About ten years ago there was a very interesting case when Mont Blanc pens used the images of Mahatma Gandhi in their advertisements. It was all the rage and the case was taken to the High Court in Kerala. The High Court of Kerala, following a petition, has issued opinions to Mont Blanc International seeking to prevent Mont Blanc from marketing its then recently launched Rs 14-lakh Gandhi pens. Mont Blanc appears to have obtained permission from Gandhi’s family and said there was no ethical issue involved in the case. He said in court that Gandhiji’s austere lifestyle did not mean that his image could not be used in a non-derogatory manner, especially since the necessary permissions had been duly obtained from his legal heirs.

The use of words / names / brand names that are important to the nation and its prestige is governed by the Emblems and Names (Prevention of Inappropriate Use) Act 1950. Article 3 of the law deals with the prohibition of the inappropriate use of certain emblems and names – “Notwithstanding anything contained in a law currently in force, no one shall, except in the cases and under the conditions prescribed by central government, use or continue to use for the purposes of any trade, business, appeal or profession, or in the title of any patent, or in any mark or design, any name or emblem specified in the annex or, any imitation disguised from these without the prior authorization of the central government or such government agent as may be authorized in that name by the central government.

Article 4 of the same law prohibits the registration of certain companies:

(1) Notwithstanding anything contained in a law currently in force, no competent authority shall:
– (a) Register any company, business or other body of persons with any name, or
– (b) register a mark or design bearing an emblem or a name, or
– (c) Grant a patent for an invention, which bears a title containing an emblem or a name, If the use of such name or emblem is in violation of Article 3

It is interesting to note that it is section 9A of the annex attached to the law (amended until 31.5.2011) which contains very specific instructions on the correct and incorrect use of names which are important to the nation : the name or pictorial representation of Mahatma Gandhi, Pandit Jawaharlal Nehru, Shrimati Indira Gandhi, Chhatrapati Shivaji or the Indian Prime Minister or the words “Gandhi”, “Nehru” or “Shivaji”, except for their use illustrated on calendars where only the names of the manufacturers and printers of the calendars are listed and the calendars are not used for product advertising. (Listed by notification n ° SO1503 of April 8, 1970).

This really nails the argument on the “Sardar” issue to a level that business entities are not allowed to use such names or titles. But then there is no real legally mandated list that puts certain names out of bounds. Much like Sardar (not even counting the Sikh community), pandits (the Brahmins commonly referred to as such) really cannot be banned from using this word because it is the last name of many and just because the first prime minister from India was called Pandit Jawaharlal Nehru, the word cannot be banned from commercial use. The same logic could extend to the use of “Modi”, since all prime ministers are covered by the law. But then the Modi family got Modi Continental, Modi Olivetti. Modiluft, Modipon, Modi Revlon, Modi Xerox used for decades. Can they be banned in the future?

I guess that’s a somewhat gray area of ​​the law. What is apparently clear is not really. “Sardar” and “Mahatma” may have been resolved for now, but other similar issues will surely continue to surface in the future.

(The author is a qualified lawyer and art expert who examines intellectual property issues in all fields. The opinions expressed are personal.)

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