Recently, Secretary of Department of Industrial Policy and Promotion (DIPP) of the Ministry of Commerce and Industry has filed a Trademark Application for the logo “Make in India.” The Trademark Registry has given an application number : 2829230 for the said application. The application is filed in class 9, 16, 18, 25, 28, 35, 38, 41 and 42 of the Trademark classes. The application is filed for the “Make in India” Logo (The Lion Image).
This application by the Secretary of Department of Industrial Policy and Promotion, prompted me to relook some conceptual aspects of Trademark. Essentially a trademark is something that relates a good or services with its manufacturer or service provider as the case may be.
“A trademark is a distinctive sign which identifies certain goods or services as those produced or provided by a specific person or enterprise. Its origin dates back to ancient times, when craftsmen reproduced their signatures, or “marks” on their artistic or utilitarian products. Over the years these marks evolved into today’s system of trademark registration and protection. The system helps consumers identify and purchase a product or service because its nature and quality, indicated by its unique trademark, meets their needs.” (http://www.wipo.int/trademarks/en/trademarks.html)
A trademark provides protection to the owner of the mark by ensuring the exclusive right to use it to the select goods or services. Actual or proposed trade in goods in goods or services is a requirement for claiming ownership in a trademark and non use is a ground for its revocation. Keeping this in background can we call a State Department as a trader or a manufacturer or service provider. DIPP is not dealing with any goods or services. Let me elaborate on all these in detail.
The above referred Trademark application for “make in India” is filed for the following goods and services.
- [CLASS : 9] APPARATUS AND INSTRUMENTS FOR RECORDING, TRANSMISSION OR REPRODUCTION OF SOUND OR IMAGES; MAGNETIC DATA CARRIERS, RECORDING DISCS; COMPACT DISCS, DVD AND OTHER DIGITAL RECORDING MEDIA; COMPUTER SOFTWARE
- [CLASS : 16] PAPER AND GOODS MADE FROM THESE MATERIALS (NOT INCLUDED IN OTHER CLASSES) ; PHOTOGRAPHS; PRINTED MATTER ; STATIONERY; OFFICE REQUISITES (EXCEPT FURNITURE); INSTRUCTIONAL AND TEACHING MATERIAL (EXCEPT APPARATUS); PLASTIC MATERIALS FOR PACKAGING (NOT INCLUDED IN OTHER CLASSES); PRINTING BLOCKS; PRINTERS’ TYPE.
- [CLASS : 18] LEATHER AND IMITATIONS OF LEATHER, AND GOODS MADE OF THESE MATERIALS AND NOT INCLUDED IN OTHER CLASSES; TRAVELLING BAGS; UMBRELLAS AND PARASOLS.
- [CLASS : 25] CLOTHING; FOOTWEAR; HEADGEAR
- [CLASS : 28] GAMES AND PLAYTHINGS; GYMNASTIC AND SPORTING ARTICLES NOT INCLUDED IN OTHER CLASSES.
- CLASS : 35] SERVICES PERTAINING TO ADVERTISING , BUSINESS MANAGEMENT, BUSINESS ADMINISTRATION AND OFFICE FUNCTIONS WITH THE OBJECT TO HELP IN THE WORKING OR MANAGEMENT OF A COMMERCIAL UNDERTAKING AND MANAGEMENT OF BUSINESS AFFAIRS; ADVERTISEMENT UNDERTAKING COMMUNICATIONS TO THE PUBLIC, DECLARATIONS OR ANNOUNCEMENTS BY ALL MEANS OF DIFFUSION AND CONCERNING ALL KINDS OF GOODS OR SERVICES INCLUDING BANK LOANS; SERVICES RELATED TO REGISTRATION, TRANSCRIPTION, COMPOSITION, COMPILATION OR COMPILATION OF MATHEMATICAL OR STATISTICAL DATA; SERVICES RELATED TO DISTRIBUTION OF PROSPECTUSES, DIRECTLY OR THROUGH THE POST, OR THE DISTRIBUTION OF SAMPLES.
- [CLASS : 38] TELECOMMUNICATIONS SERVICES BY WAY OF COMMUNICATING FROM ONE PERSON TO ANOTHER BY SENSORY MEANS.
- [CLASS : 41] EDUCATION; PROVIDING OF TRAINING; SERVICES INTENDED TO ENTERTAIN OR TO ENGAGE ATTENTION; SERVICES FOR DEVELOPMENT OF MENTAL FACULTIES; PRESENTATION OF WORKS OF VISUAL ART OR LITERATURE TO THE PUBLIC FOR CULTURAL OR EDUCATIONAL PURPOSES.
- [CLASS : 42] SCIENTIFIC AND TECHNOLOGICAL SERVICES AND RESEARCH AND DESIGN RELATING THERETO; INDUSTRIAL ANALYSIS AND RESEARCH SERVICES ; SERVICES INDIVIDUALLY OR COLLECTIVELY IN RELATION TO THEORETICAL AND PRACTICAL ASPECTS OF COMPLEX FIELDS OF ACTIVITIES SUCH AS EVALUATION, ESTIMATES RESEARCH AND REPORTS IN SCIENTIFIC AND TECHNOLOGICAL FIELDS.
It is very clear from the role and procedure of DIPP that DIPP is not a manufacturer, or trader of any goods or services. Its role should lie in governance, regulations, policy making and implementation. In such case how, could a department own a tademark?
Goods and Services are defined in the Trademark Act. Goods means anything which is the subject of trade or manufacture, and Service means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising. It is very clear that DIPP would not be either doing a trade or manufacture or doing any service mentioned in the definition of services. Section 18 of the Trademark Act makes it very clear that only a person who claims to be the proprietor of the Trademark used or proposed to be used by him can apply for the trademark. Whether DIPP will be considered as a trader or manufacturer of paper goods, magnetic record carrier, or record disks, leather and imitation of leather, clothing and footwear, games and playthings for which they have made trademark application. Similarly, whether DIPP shall be doing advertising services, telecommunication services, education services or scientific and technical services for which the application is made. DIPP is neither a trader, manufacturer or service provider. Thus a trademark application by DIPP in strict sense of law is bad.
Yes, make in India as brand has achieved tremendous public attention. And use of this brand, image etc. should be regulated. However, making these emblems and names as trademark is against the spirit of law. My intent is not to say that Make in India is not a brand having commercial value. Make in India is one of the successfully launched initiative of the Government and the logo designed for the said program has become immensely popular and has very high commercial value and it is also true that Department shall take appropriate steps to protect the value of the said commercially viable symbol. However, filing a trademark application may not be the right step to protect that important government program and its connected symbols. Government is neither a trader, manufacturer, or service provider to qualify for making a trademark application. Instead of filing trademark applications, government should have used the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950 which provides protection for all national emblems. Government should have declared this as a national emblem and should have regulated its use rather than assuming the role of a trader, manufacturer, or service provider.
“Make in India” is a national program of the Union of India. All intellectual property generated, created, belongs to the Union of India. As per Article 299 of the constitution of India all assurances of property of the union of India shall be on behalf of President of India. Such being the law, whether a Secretary to the Ministry can own property including intellectual property on behalf of the ministry or on behalf of the Union of India ? In my view, it may not be legally permissible for a Secretary of a Department to Own any property including Intellectual Property, it should belong to the Union of India and is represented by the President of India.