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Rajasthan High Court · body

2007 DIGILAW 2334 (RAJ)

Sant Ganpat Ram v. The State of Rajasthan

2007-12-06

MOHAMMAD RAFIQ

body2007
JUDGMENT 1. - Petitioner, who has appeared in person. has filed this writ petition. with the prayer that respondents No. 3 to 9 be retrained from using the names and images of Gods and Goddesses as brand/trade name on their products. The petitioner has argued that such names and images printed on different packages of the aforesaid products are thrown into the dust-bin and eventually form part of the garbage which hurts the sentiments of a large number of people who hold such Gods and Goddess in great reverence. 2. Having heard the petitioner who is present in person and perused the material forming part of the record, I find that rather than approaching this Court directly, the petitioner should better approach the authorities constituted under the Emblems and Names (Prevention of Improper Use) Act, 1950 (hereinafter referred to as 'the Emblems Act') and the Trade Marks Act, 1999 (for short, 'the Act, 1999'). 3. Section 3 prohibits improper use of emblems and names specified in 5 the Schedule of any colourable imitation thereof without permission of the Central Government or officer authorised in this behalf. Section 4 prohibits registration of certain companies etc. or registration of a trade mark or design, or grant of patent bearing any name/emblem if the use of such name or emblem is prohibited under Section 3. Section 8 empowers the Central a Government to amend the Schedule. For the sake of ready reference, above-mentioned Sections may be quoted 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 5 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 colourable imitation thereof without the previous permission of the Central Government or of such officer of Government as may be authorised in this behalf by the Central Government. 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. 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. (2) If any question arises before a competent authority whether any emblem is an emblem specified in the Schedule or a colourable imitation thereof, the competent authority may refer the question to the Central Government. and the decision of the Central Government thereon shall be final. 8. Power of the Central Government to amend the Schedule-The Central Government may, by notification in the Official Gazette, add to or alter the Schedule, and any such addition or alteration shall have effect as if it had been made by this Act." 4. Rules titled The Emblems and Names (Prevention of Improper Use) Rules, 1982' (in short, 'the Rules') have been framed in exercise of power conferred by Section 9 to carry out its purpose. Rule 3 provides for appointment of a designated officer and rule 4 provides for appointment of Committee consisting of officials as mentioned thereon. Rule 6 provides for processing of proposals for additions or alternations to the Schedule. Having regard to its relevance, the said rule may also be quoted as under : "6. Processing of proposals. --Any proposal for making additions or alternations to the Schedule received by the Central Government from any State Government, local authority or any other source, shall be referred to the designated officer who shall, after examining the same and after classifying the said proposals in appropriate classes wherever possible, submit them for consideration by the Committee." 5. Rule 7 lays down that the Committee, after considering the proposal submitted by the designated officer shall make appropriate recommendations : as to desirability or otherwise of including any particular proposal or classes of proposals in the Schedule. The designated officer, on receipt of recommendations from the Committee, shall submit the same to the Central Government whose decision thereon shall be final. Rule 8 again prohibits use of emblems and names specified in the Schedule. The designated officer, on receipt of recommendations from the Committee, shall submit the same to the Central Government whose decision thereon shall be final. Rule 8 again prohibits use of emblems and names specified in the Schedule. There are as many as 24 entries (as upto 15.1.2004). It is not necessary to refer to the entries. 6. Likewise, Section 9(2) (b) of the Trade Marks Act provides that a mark shall not be registered as a trade mark if ''it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India". Section 23 provides for registration of a trade mark. Section 57 provides for cancellation or varying of a trade mark. Sub-section (2) thereof provides that any person aggrieved, inter alia, by any entry in the Register may apply to the Appellate Board or to the Registrar, and the Tribunal may make such order for expunging or varying the entry as it may think fit. 7. The petitioner has in the present matter placed on record copies of the packages of different products which show the names and images of Lord Krishna, Lord Ganesha, Goddess Laxmi, Lord Hanuman having been used on the packages and pouches of products like scent sticks, Gutka, Bidi/Tobacco, Soaps and various other eatables. The petitioner has prayed for a mandamus upon the respondents so as to prevent them from using of such images and/or names in the packing material of the aforesaid products. 8. The point for consideration is whether this Court can issue directions to the above effect in exercise of jurisdiction under Article 226 of the Constitution of India. I have briefly referred to the scheme of Emblems Act. On conjoint reading of Section 8 with the relevant rules, it is manifest that the power conferred on the Central Government to amend the Schedule - by addition or alternation - is a legislative power, which cannot be performed by this Court. However, it does not appear from the contents of the petition that whether the petitioner has made any representation, especially to the Central Government. However, it does not appear from the contents of the petition that whether the petitioner has made any representation, especially to the Central Government. If such representation is made by the petitioner, the Central Government or its Committee and designated officer are legally obliged to consider the same and do the needful as may be warranted by law, especially in view of the provisions contained in Rule 6 of the rules of 1982, where such r proposals received by the Central Government not only from the State Government but also by any other source'' shall be referred to the designated officer for his consideration who, after examining the same and after classifying the said proposals in appropriate class, wherever possible, submit them for consideration by the Committee as prescribed by Rule 7 of the Rules of 193.. 9. As regard use of name/emblem of any God/Goddess as trade mark under the Trade Marks Act, and cancellation of any trade mark containing such name/emblem. as seen above, Section 9(2)(b) prohibits registration of the mark containing or comprising of any matter likely to hurt the religious feelings of any class or section of the citizens. Section 57 provides that any person aggrieved by any entry made in the register of trade mark can apply to the Appellate Board. The question as to whether a particular name/emblem of any individual is likely to hurt the religious feeling of any class or section of the people has to be decided at the first instance by the Registrar of Trade Mark. So far as registrations already made are concerned, as mentioned above, under Section .57(2) any person aggrieved by any entry in the Register of trade marks may apply to the Appellate Board or the Registrar, and the Tribunal may make such order for expunging or varying the entry. The petitioner may make suitable representation/appeal to the concerned authorities in accordance with law. 10. In that view of the matter, while not directly entertaining the writ petition, I am satisfied that ends of justice would be met if the petitioner is set at liberty to make a representation to the Central Government with a further direction to the Central Government to consider such representation if and when made, in accordance with law. 11. 10. In that view of the matter, while not directly entertaining the writ petition, I am satisfied that ends of justice would be met if the petitioner is set at liberty to make a representation to the Central Government with a further direction to the Central Government to consider such representation if and when made, in accordance with law. 11. In view of what has been discussed above, this writ petition is disposed of with the liberty to the petitioner to file and pursue the representation which he may now make to the Central Government and a direction to the Central Government and/or its Committee/Designated Officer to consider such representation(s) and take an appropriate decision in accordance with law.The petition is accordingly disposed of.Writ Petition Disposed of as above. *******