Waving Trademarks: Can India’s National Flag Be Claimed for Commerce?

As India celebrates its Republic Day, it’s an opportune moment to reflect on the intricate legalities surrounding the national emblems, particularly the Indian National Flag, and whether they can be considered as trademarks.

The Emblems and Names (Prevention of Improper Use) Act, 1950, plays a pivotal role in safeguarding the sanctity of national symbols. This legislation explicitly defines emblems, including the Indian National Flag, and prohibits their use for professional and commercial purposes without the prior permission of the Central Government. Section 3 of the Emblems Act explicitly prohibits the use of colorable imitations of these emblems for trade, business, or profession, extending to patents, trademarks, and designs.

The Trade Marks Act, 1999, further reinforces these restrictions, stating that a mark is not registrable if its use is prohibited under the Emblems Act. Obtaining trademark protection for a sign containing a national emblem is deemed exceedingly difficult, if not nearly impossible, emphasizing the need for official consent from the Central Government.

A recent case, Jindal Industries Private Limited Vs. The Registrar of Trade Marks, exemplifies the nuances involved. The Delhi High Court, in its judgment, clarified that the Emblems Act does not explicitly prohibit the use of the outline of the Indian map. In this instance, the court highlighted that the use of the map signified the product’s origin in India, and approval from the Survey of India further supported the legitimacy of the mark. The court’s decision serves as a reminder that legal interpretations can shape the permissible use of national emblems.

Adding complexity to the legal landscape is the Flag Code of India, 2002. While this code allows unrestricted display of the tricolor, it also sets specific rules and restrictions. The code emphasizes the rectangular shape of the flag, the equal width of saffron, white, and green bands, and the placement of the Ashoka Chakra. Notably, the code strictly prohibits the use of the flag on costumes, uniforms, or everyday items like cushions and handkerchiefs.

In light of these legal provisions, the question arises: Can the national flag be considered a trademark? The answer seems to be a delicate balance between respecting national symbols and acknowledging the evolving landscape of intellectual property.

The episode involving e-commerce giant Amazon in 2022 underscores the potential consequences of overlooking these regulations. Selling products adorned with the Indian National Flag during the Republic Day sale led to a public backlash, prompting Amazon to promptly remove these items. This incident serves as a cautionary tale for brand owners looking to capitalize on patriotic sentiments without considering the legal implications.

As we navigate the ever-expanding electronic and digital landscape, there is a pressing need for legislators to revisit and possibly amend the Emblems Act. Aligning these laws with the latest technological advancements, marketing trends, and preferences would ensure that commercial activities are not stifled by outdated clauses.

While leveraging national symbols for commercial purposes can evoke patriotism, brand owners must tread carefully. Understanding the legalities, seeking appropriate permissions, and staying informed about potential ramifications are imperative steps in safeguarding both brand image and legal compliance.

In conclusion, while the Trademarks Act disallows direct claims over the national flag, the legal avenues for derived elements remain somewhat ambiguous. However, a cautious approach is paramount, keeping in mind the potential for public backlash, ethical concerns, and the risk of undermining the flag’s symbolic integrity. Perhaps, on this Republic Day, we can celebrate the Tricolour not just as a legal entity, but as a powerful symbol that transcends commercial interests, holding aloft the values of unity, democracy, and national pride.

On this Republic Day, let us celebrate the tricolor with pride, mindful of the delicate balance between national symbols and the dynamic world of trademarks.

We at The IP Press wish everyone a very Happy Republic Day!

About Amisha Mittal 12 Articles
Amisha Mittal is a final-year law student pursuing a BA. LLB. (Hons) at Jindal Global Law School, Haryana. Her interest areas align with Intellectual Property Law, Competition law and other technology related laws. She shares a passion for research and writing and with a strong interest in academia, she aspires to contribute to the legal scholarship in these areas.

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