MODEL REPLY TO OBJECTIONS UNDER S.9(2)(b): The mark comprises of matter which is likely to hurt the religious susceptibilities

17 Apr MODEL REPLY TO OBJECTIONS UNDER S.9(2)(b): The mark comprises of matter which is likely to hurt the religious susceptibilities

From,

Loyal Consultancy

Taloja, Panvel

Navi Mumbai Maharashtra

17th April’ 21

To,

The Registrar of Trade Marks

Trade Marks Registry,

Boudhik Sampada Bhawan,

Near Chanakyapuri overbridge,

Besides AMC City Civic Centre,
Ghatlodia, Ahmedabad – 380061

Sub: Response to the objections under S 9(2) (b) of the Trade Marks Act, 1999 in respect of application number 5599089 in class 35.

Reference- Your Examination report uploaded in your official website dated 24.03.2021.

Trademark- SHREE STHUTHIM

Sir,

The examiner of Trade Marks while examining my Trade Mark application has raised objections under S 9(2) (b) of the Trade Marks Act, 1999 stating that the applied mark contains or comprises of matter which is likely to hurt the religious susceptibilities of any class or section of the citizens of India.

I respectfully disagree with the objections and submit the reply as under:

The applied Trademark consists of an image of horse, rising sun, sky, waves of water, bride and the expression SHREE STHUTHIM. The expression means Vedic hymns but the expression SHREE STHUTHIM is a part of the whole the device consisting of all the above elements. The addition of images makes the mark distinctive in respect of “Advertising Business Management, Office Functions” services in class 35. The law prescribes taking the mark as a whole not in parts therefore imposition of S 9(2) (b) of the Trade Marks Act in not justified.

I draw the kind attention of the Examiner of Trade marks to the famous book of learned author Sri K. C. Kailasam who wrote of page 655 of his famous book “Law of Trade Marks” at page 200:

“In Sri Vishnu Cement Ltd v. B.S. Cement Private Lid., the Registrar concluded that in the absence of device of Lord Vishnu, the word Vishnu was to be treated only as a personal name and as such no religious significance could be attached to hurt the religious susceptibilities of the Hindus.”

I rely on the judgement of Mangalore Ganesh Beedi Works v. District Judge2, in which the Allahabad High Court dealt with the scope of “religious susceptibility” of a trademark by the name of “Ganesh Beedi”. The validity of the trademark was challenged claiming that that religious feelings as well as feelings of Hindus at large are deeply hurt when the purchasers of the petitioner’s product throw the bidi wrapper containing the picture of ‘Lord Ganesh’ on streets which are stamped by persons walking on the streets or in dustbins or at other dirty places. The challenges were made stating that the these acts of buyers of the petitioner’s products result into insult of ‘Lord Ganesh’ as such, the petitioner has no right to use trademark/picture of ‘Lord Ganesh’ on the Bidi/wrappers/labels used by the petitioner which is was considered  to be “vice in Hinduism” and disrespectful towards religious sentiments.

Allahabad high Court held in the following verbatim:

“…21.In so far as the question whether use of device of ‘Lord Ganesh’ on the label is concerned, it is used in the calendars, diaries, greeting cards, invitation cards for wedding ceremonies, and in all important auspicious ceremonies, functions etc. in the symbol or device of ‘Lord Ganesh’ is not depicted in a manner which can be said to be objectionable and which may hurt the religious feelings, faith and sentiments of Hindus, it cannot be said that the symbol itself hurts the religious feelings, sentiments and faith of thousand of people. Smoking of biris may be injurious to health but it certainly is not treated as anti-religious. No religion, much less, Hindu religion and religious scriptures prohibit smoking of bidis. Significantly, crores of people in India, most of whom are Hindus, smoke bidis. If the bidi smokers throw bidi packages on the street or in waste paper basket, the petitioner cannot be held responsible for their said act. Several trade marks containing names and motifs of God or Goddesses in respect of various goods are registered under the TMM Act. No one, except one or two have raised objections to the use of the name and motif of ‘God Ganesh’ on its bidi packets on the ground that it hurts their religious feelings. Likewise, names and or pictures of Gods or Goddesses are being printed on articles of daily consumption since over a century, but they have never been treated as objectionable or anti-religious or hurting religious feelings of Hindus.

22. Thus, the registration of a trade mark creates a legal right in favour of the petitioner and it is entitled to use that trade mark until and unless it is cancelled, rectified or revoked in accordance with law. In the present case, the picture of ‘Lord Ganesh’ is used by the petitioner as it has faith and belief in ‘Lord Ganesh’ and he believed that ‘Lord Ganesh’ will bring prosperity in its business, which cannot be said to hurt the feelings and sentiments of Hindus.”
23. A similar matter came up for consideration before Bombay High Court in Bhau and Anr. v. State of Maharashtra and Ors.- 1999 Crl. L.J-1230, wherein allegations of sweeping nature, as in the present case, had been made for establishing that label hurts religious sentiments. The court dealt with the matter regarding injury to the religious feelings in printing and pasting of photographs of God and Goddess of Hindu religion on fire crackers. The court was of the view that if any petitioner feels that by bursting the fire crackers on which there are photographs of God and Goddesses, he may stop himself using such fire crackers for his own purpose because only his feelings are being hurt but he should not take the matter in his hands as if he is representing whole of the society when whole of the society is not looking to the matter from that point of view.
24. In that case, the petitioners had contended that the photographs of God and goddesses of Hindu religion are being printed on the coverings of the fire crackers and when the fire crackers are fired, those photographs are destroyed and this causes mental agony to the persons from Hindu community and, therefore, the manufacturers of the fire crackers be directed not to affix photographs of god and goddesses of Hindu religion on the fire crackers.
25. The court held that it is a fact that photographs of God and Goddesses of Hindu religion are being pasted on the fire crackers which is not happening for the first time and this practice is going on since last many years but nobody raised any objection regarding this practice uptil then. This was only because nobody thought it objectionable. Nobody’s feelings were hurt on seeing the fire crackers bursting and the photographs destroying because the photographs on the fire crackers were not being looked at as photographs of god and goddesses but just some prints to attract the attention of the customers. There was no intention that anybody’s feelings should be hurt by selling such fire crackers or by bursting such fire crackers. It is just whim of the petitioners and for that they have come before the court. The court gave an example of newspaper observing that photographs of God Goddesses are being printed everyday in different newspapers. The life of the newspaper is hardly for 24 hours and thereafter it becomes waste paper and those photographs on the newspapers go to the dustbin in majority of the cases without anybody considering that there are photographs of God and goddesses of Hindu religion or photographs of National leaders because the matter is never looked at from that point of view. The court further observed that whenever invitation cards of marriages or other ceremonies being performed by Hindu persons, photographs of God and goddesses are printed on these invitation cards and once the purpose of the cards is finished those cards also go to the dustbins, with them the photographs printed on them. Here also nobody’s feelings are hurt by saying that the photographs of God and goddesses are being thrown in dustbins along with other rubbish matters.

PRAYERS

In the light of the above Court decision the composite mark  SHREE STHUTHIM  is not depicted in a manner which can be said to be objectionable and which may hurt the religious feelings, faith and sentiments of Hindus. It cannot be said that the symbol itself hurts the religious feelings, sentiments and faith of thousands of people as objected under S. 9 (2)(b). Nobody’s feelings will be hurt on seeing SHREE STHUTHIM on the applied goods as decided by the above case laws. Vedic hymns of Hindu religion are being used on the different goods and services and brands are made not for the first time India but this practice is going on since last many years. Nobody raised any objection regarding this practice as held in above cite case laws.  The applicant pray to consider the fact that Vedic rhymes will bring prosperity in the life of purchaser which cannot be said to hurt the feelings and sentiments of Hindus. Therefore the objections under S. 9 (2)(b) should be waived and the application be accepted for publication and registration.

Thanking You.

Yours Sincerely,

Digitally Singed by LOYAL CONSULTANCY