We are happy to bring to you a very interesting guest post by one of our regular guest bloggers, Harshavardhan Ganesan. Harshavardhan is currently a foreign intern at Kelley Drye and Warren LLP, Manhattan.
Heil Good Trademarks!
Harshavardhan Ganesan
“What’s in a name? That which we call a rose by any other name would smell as sweet” – William Shakespeare, Romeo and Juliet, Act II Scene II.
Sorry Willy, but they didn’t have trademark law when you were around (at least in its modern sense. A generic use of a trademark as an “indicator of goods” was used by the Japanese: It was codified in the Taihō-ritsuryō as early as 701 A.D.). In trademark law, maintaining a unique identity is paramount: words which are used as surrogates for each other in ordinary parlance might represent two rival companies/source identifiers in the trademark realm. Therefore, when companies are set up, they want to choose a name which is snazzy and trademark-able in equal proportions, a name that resonates with the vox populi and the trademark authorities alike. It is therefore not surprising that companies receive “generic” legal advice from firms when they wish to christen their company, usually advising them to choose a name that will not only withstand initial inspection, but also long-term scrutiny. The run of the mill advice is to make sure a name chosen is “distinctive or arbitrary” and not “merely descriptive”, or the black sheep of trademarks, “generic”. Although this longstanding wisdom regarding the distinctiveness spectrum is not being challenged, the question of “what constitutes a good trademark” is, and vigorously so.
Don’t believe me? Alright, I will put forth two trademarks, and you tell me whether both of them, one of them, or none of them constitute a “good trademark”. Ready? Exhibit 1: ‘Nirbhaya buses’, a fictional company established in the aftermath of the gruesome incident in Delhi, which runs hourly shuttle buses for women alone, driven by women drivers at a concessional rate, and Exhibit 2: ‘Nirbhaya rods’, a (thankfully) fictional company established in the aftermath of the gruesome incident in Delhi, which manufactures metallic rods. At first glance, we are tempted to shred the latter’s trademark application, and send the proprietors to purgatory for even suggesting such a vile name, but put your moral convictions aside for a second ( just a second, I promise). Both these trademarks are legally tenable, aren’t they? Nirbhaya seems like a random name, in vacuum, that can be used to denote a particular good or service. When looked at through a morally neutral lens, the trademarks seem fanciful, possibly suggestive, but certainly land on the distinctive side of the spectrum, as opposed to the generic flank. However, I think we can both agree that such a nauseating, repellant trademark should never be granted. Are we both guilty of viewpoint discrimination here? Pardon the language, but damn right we are! A trademark like ‘Nirbhaya rods’ evokes a certain visceral reaction in us, a trademark that reaches deep inside us and elicits a sense of repugnance. Nirbhaya rods might still constitute a “good trademark” in the sense that it is legally tenable, and is attractive to a segment of the population (notwithstanding the fact that the segment of the population is probably psychopaths and rapists), but it certainly shouldn’t be considered a “good trademark” in the philosophical sense of the word ‘good’. Neither should it by any stretch of imagination be granted if an application is made for registration.
Therefore, I posit that the elusive “good trademark” consists of two separate phases of analysis. The first, is a broader one, whereby we check whether the trademark at hand is situated in the legally desired zone of arbitrariness, or the unacceptable generic sector of descriptiveness. The second, is far more challenging: once we determine that the trademark is legally valid, within the microcosm of distinctiveness, the analysis that needs to be conducted assumes a philosophical hue. Depending on the definition of “good”, we need to determine whether the trademark passes not only the legal but also the moral rubric established in society. In other words, notoriety cannot be superimposed on rarity to receive a trademark registration.
For all you logic fanatics out there reading this and shaking your head vigorously, I see you. I hear you accusing me of using reductio ad absurdum, to show that if a second layer of analysis to determine whether a trademark is morally viable is not attached, it would result in abominable trademarks populating the marketplace, and that such analysis strawman’s the viewpoint discrimination argument. Additionally, the entire argument is anecdotal, because ‘Nirbhaya rods’ is something that is universally despised. Fair enough. The true test would be for trademarks stuck in moral purgatory, like the Washington Redskins case (although for the record, my personal view is that the Redskins moniker is downright disgusting and repugnant to anyone who has knowledge of Native American history in the United States, but I see specks of rationale in the argument from the other side.) In addition to this, you might say that even if you agree that determining what constitutes a good trademark is a 2 tier process, determining what constitutes “moral good” is a question that has troubled polymaths from time immemorial. It is a normative question that truly has no answer (unless you think the answer is 42; then it is definitely 42).
I plead guilty to these self-imposed, yet prescient criticisms. Maybe determining what constitutes a “good trademark” is an unnecessary task. Like I alluded to in my earlier post on opportunistic trademark filings here, maybe the market vis-à-vis the consumers will shun such morally reprehensible trademarks, and companies which engage in such blatant maliciousness will go out of business. If you think that is the solution, you are certainly more trusting than I am in the power of the consumer and collective consciousness of the public (especially in this age of bigoted demagogues aka Donald Trump).
That being said, in the first part of the post while searching for the mythical good trademark, I gave you an example of a company, albeit fictional, engaging in willful perniciousness: the company knew that a rod was the instrument of choice for the rapists, yet made the conscious decision to go ahead and name it as such anyway. What if we alter the facts a little? What if I told you that the company was situated in a rural part of India, with little to no knowledge of the happenings of the outside world? Think India’s rural version of North Korea sans the tyranny. And let’s say that Nirbhaya was the name of the proprietor’s favorite dadi, who inspired him to create his own metallic rod store, and in turn he wanted to venerate her by naming his company after her. Ignorantia juris non excusat, but surely the same rigid standards aren’t applied to a lack of general knowledge about current events, due to socio-economic conditions or a mundane bout of ennui. So that brings up the question, if the owner of the trademark was not aware of the different connotations, images and thoughts that arise due to the mention of the trademark, and one of those connotations is as heinous as an instrument of rape, should he/she still be allowed to register that trademark? I understand why some of you might think this entire discussion is moot, the hypothetical examples I provide are quixotic at best and paradoxical otherwise. What is the chance that someone, in an era of globalization, in the information age nonetheless, hasn’t heard of a tragedy that shocked a nation right? Well, what if I told you that the examples I indicated earlier are actually based on real life events? Welcome to India’s obsession with Hitler.
You read that right, Hitler. As in, Adolf Hitler, the Jew-hating, mass murdering maniac, who killed more than 6 million Jews in concentration camps and attempted to establish a pure Aryan race throughout the world. However, that is not the idea of Hitler that people have in India. In India, “Hitler” is used as an adjective to describe a person who is bossy, cantankerous, or ill-tempered, not genocidal. You might remember Zee TV’s show, “Hitler Didi” from a couple of years ago. The show, about a no-nonsense aunt, was later renamed to “General Didi”, after the Anti-Defamation League, a group which attempts to prevent anti-semitism, complained about the tone-deaf and ignorant titling of the show. Unfortunately, that is far from the only usage of ‘Hitler’ in India. Hitler has been a popular mascot for a host of Indian businesses, including Indian ice-cream vendors, clothing stores, advertising companies, Indian cafés, pool halls, and even as swastika-patterned set of bed linens called, I kid you not, “The Nazi Collection” (as an article in the Daily Beast notes, the irony of the last item, of course, is that Hitler essentially stole the swastika symbol from Indian art). Hitler has infiltrated pulp fiction to such an extent, that we have movies named after him, Hero Hitler in Love, a Punjabi comedy was about a man with an explosive temper, the Hindi film Gandhi to Hitler, was a sympathetic portrayal of the dictator’s last days (Gandhi once wrote to the Führer), and even Mollywood’s thespian “Mammookka” acted in a 1996 film named Hitler, about a man so nicknamed because he is short-tempered, domineering and permanently irked with the youngsters of the surrounding neighborhood for stalking his sisters! What is disturbingly common to all these businesses apart from their nomenclature, is that their proprietors don’t understand what all the hoopla is about!
Take Rajesh Shah, the co-owner of Hitler, a menswear store in Gujarat, he said that his shop was named after his business partner’s grandfather owing to the grandfather’s strict demeanor (last I read, the company has renamed themselves owing to strict censure from the Jewish community. Ironically when the controversy initially hit the clothing store in Ahmedabad, they displayed a Gandhi T-shirt in the window). Or take Neeraj Kumar, the producer of Hitler ice cream. He told the Hindustan Times that, he named his batch of cones after his uncle: “One of my uncles is a short-tempered and strict man, so we nicknamed him Hitler, I thought, ‘Why can’t we have a little fun at the expense of my uncle and name the cones after him!’ That was how the name originated.” After receiving scathing comments about the moniker he chose, Kumar went online and found out about the Holocaust. “I want to tell them repeatedly that the name was not given considering Hitler’s bad political steps and what they call as the Holocaust. I was not aware of any such bad thing.” he said. Remember the illusory uninformed company I alluded to earlier? Not so fantastical anymore, huh? When Hitler ice creams went viral on social media and the twitter-verse was up in arms over the use or abuse of Hitler’s name, Shashi Tharoor tweeted, “Height of tastelessness; Indian ice-cream named after Hitler. Would the Germans name a sausage after Godse?” Therefore, clearly the educated Indian is aware of the Holocaust, while the uneducated Indian languishes behind in the claws of apathy.
This of course brings us to the question, why is the term ‘Hitler’ merely used as a surrogate for an ill-tempered individual, and not used as a synonym for a genocidal dictator? Is there a rapid rise of anti-Semitism in India? I think not. While there probably isn’t a simple answer to this question, we can definitely start with the severe lack of a robust Holocaust education in India. As ridiculous as this sounds, Holocaust awareness in India is limited, and large sections of Indians are not aware of who Hitler actually was and what the Holocaust meant. In fact, in Indian public schools, the Holocaust is not even taught. In fact, when the Times of India had to do an article about the spread of Hitler influenced companies in India, it had to explicitly mention what the Holocaust was! Additionally, Hitler was fighting against the British in World War II, which many Indians immediately assume means that he was pro-Indian. German history is taught in many places to mean that had Hitler not weakened the British during World War II, Britain would never have agreed to India’s Independence. Therefore it might not be an exaggeration to say that for some, Hitler is an anti-colonial hero.
What does all this have to do with trademark law? Quite a bit. On a quick perusal of the trademark “Hitler”, I found that there exist a couple of entries for the trademark on a wide gamut of products in classes 5, 9, 13, and 27. Unfortunately, I was unable to find whether the individual trademark applications had in fact been granted, objected or rejected, but the decision to grant a trademark for a product named after Hitler lies at the crux of our discussion thus far. Is a Hitler based pharmaceutical a “good trademark”? It is distinctive, sure, but is it morally acceptable to use the name ‘Hitler’, a universally tarnished name? (much to the chagrin of those who used the name ‘Hitler’, before Adolf Hitler spawned in Braunau am Inn, Austria. A must watch documentary for those interested in this is called “Meet the Hitlers” by Director Matt Ogens, which explores just how much a name can influence an identity à la the Shakespearean quote from Romeo and Juliet at the beginning of this article). Simply put, can witlessness of an issue serve as a valid excuse for registering a trademark on a morally contentious subject matter?
My 2 cents on the subject, is simply that the trademark office has a greater duty than merely accepting or rejecting trademark applications, it also has a duty to educate people as to the cause of rejection, and therefore to instruct them that apathy in any scenario is unacceptable. It is possible that such a decision might be perceived as uppity, ignoring the use of ‘Hitler’ in Indian culture and adhering to Western diktats. As Rajesh, a pavement book-store owner who sells several copies of Mein Kampf every week said, all he knew about Hitler was “Bande ne bas ek book likha aur wo bestseller bangaya (the guy just wrote one book which made him a bestseller).” In this case, I’d rather be stuck-up than downright insensitive.
P.S.- For making it through this long winding post, here’s a small gift to you from the Fuhrer himself. You’re welcome.
Image from here.