"Mera Naam FUHRER (HITLER) - engaging in willful perniciousness or heil good TRADEMARK"
What’s in a name? A rose by any
other name would, make the contract voidable by Misrepresentation . . . . . . .
. .
Hitler has been a popular mascot for a host
of Indian business, including Indian Ice-cream
vendors, Clothing stores, advertising companies, Indian cafés, pool halls, and
even as swastika-patterned set of bed linens called, “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). 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!
In Trademark Law, maintaining a unique
identity is paramount. Therefore, companies 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. The
best practice will be to make sure a name chosen is “distinctive or arbitrary”
and not “merely descriptive”. Although this longstanding wisdom regarding
the distinctiveness spectrum is not being challenged, the question of “What constitutes a good trademark” is,
and vigorously so.
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.
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. 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?”
Hitler in India: An Origin
Story As in Adolf Hitler, the Jew-hating, mass
murdering maniac, who killed more than 6 million Jews and other “impure”
individuals 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.
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. 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.
Quite a bit. On a quick perusal of the
Trademark, “Hitler”, that there exist a couple of entries for the TM on a wide
gamut of products in Classes 5, 9, 13, and 27. Unfortunately, unable to find
whether the individual TM applications had in fact been granted, objected or
rejected, but the decision to grant a TM 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?
Simply put together, TM office has a greater
duty than merely accepting or rejecting TM 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.
Complement this Reading with:
- India’s Hitler
clothing shop owners to choose new name
- Hitler Clothing Store In India Sparks Outrage, Owner Claims
Innocence
- What’s with India and Hitler?
- Registering Offense
Courtesy: Mayank Sharma (Faculty, IMS Noida)
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