The point where intellectual property and obscenity intersect: Analysis of Section 9(2)(c) of Trademarks Act, 1999 in context of the Myntra case – Part 1

The part-II of the article can be accessed here.

In December 2020, Naaz Patel of Avesta Foundation NGO filed a complaint with the Cyber Crime Department of the Mumbai Police. The complaint alleged that Myntra’s Brand logo (legally called “Trade Mark”) is offensive to women. Soon after this, the Mumbai Cyber Crime Department responded to the complaint wherein they “found” the logo to be offensive to women. It is pertinent to note that, herein, no further explanation or detailed reasoning was given by the Mumbai Cyber Crime Department. Such a reasoning was mandated because it would have allowed a better comprehension of what considerations went behind while determining the logo as “offensive to women.” Immediately after the response by the Cyber Crime Department, an email was sent by them to Myntra due to which Myntra took the decision of revising its logo.

As of date, Myntra has already applied on January 13, 2021 for a Multi-Class Series Application (Class 99) bearing Trade Mark Number 4819586 for its revised logo that has been revamped with minor changes. Taking into consideration the fact that the revised logo comprises of minor changes only, firstly, this blog post shall analyse the application of Section 9(2)(c) of the Trade Marks Act, 1999 – an unchartered territory – in the Myntra case. Secondly, this blog post shall apply the Test of Contemporary Standards over Hicklin’s Test to examine whether the supposed obscenity in Myntra’s Logo is valid. Thirdly, the author shall scrutinize how the reading of Section 9(2)(c) of the Trade Marks Act, 1999 with the Indecent Representation of Women (Prohibition) Act, 1986, in Myntra’s case is futile. Fourthly, this blog post shall also analyse the international jurisprudence regarding the bar of Trade Mark Registration on the ground of obscenity. In finality, the author shall lay down the possible consequences that Myntra and other brands may face in the coming future alongside the probable alternative that they could adopt for better damage control.

Section 9(2)(c) – A Gaping Grey Area

Section 9(2)(c) of the Trade Marks Act, 1999 (“1999 Act”) provides that a Trade Mark shall not be registered if it comprises or contains “scandalous or obscene matter.” The first point of conundrum that arises is that the Indian Legislature has failed to provide a straightforward definition for “scandalous or obscene matter” in the 1999 Act. Further, there is little to no interpretation given by the Indian Courts to such phrase in the context of intellectual property. This lack of definition leads to serious implications as it allows the Indian Courts to free ball in the already-subjective territory of interpretation of “scandalous or obscene matter” due to the laxity displayed by the Indian Legislature by failing to provide a clear-cut definition for the same. This attitude of the Indian Legislature and power given to the Courts – for interpretation of a grey area – proves counter-productive to the Indian Justice System.

Most likely Indian Courts will be given the leeway to interpret the already subjective definition of “scandalous or obscene matter” as the Indian Legislature has failed to give a standard definition for the same under Section 9(2)(c). This leads us to the case of Directorate General of Doordarshan v. Anand Patwardhan wherein the Supreme Court held that: “The Indian Penal Code on obscenity grew out of the English Law, which made Court the guardian of public morals.” The second point of conundrum that arises is the appointment of the Indian Courts as “guardian of public morals.” The problem lies in the fact that if the Indian Courts are appointed as guardian of public morals, then there will be a major time-delay in the standardization of interpretation of “scandalous or obscene matter” under Section 9(2)(c) because there will exist conflicting decisions between various Courts in the absence of a standard definition that could have been possibly provided by the Indian Legislature. These conflicting decisions will arise due to the varying degrees of interpretation of “obscene and scandalous matter” given by various Courts unless finally settled by the Apex Court. The reason why there will exist such varying degrees of interpretation of “obscene and scandalous matter” is because, in the case of Samaresh Bose v. Amal Mitra, the Supreme Court observed the following regarding “obscenity”:

[A] Judge with a puritan and prudish outlook may on the basis of an objective assessment of any book or story or article, consider the same to be obscene. It is possible that another Judge with a different kind of outlook may not consider the same book to be obscene on his objective assessment of the very same book.

Thus, due to this high probability of subjective understanding and interpretation of “obscenity” by a judge, there will exist varied degrees of interpretation – for “scandalous and obscene matter” under Section 9(2)(c) – by the Indian Courts. Therefore, in Myntra’s case, this major time-delay in the standardization of interpretation of “scandalous or obscene matter” comes at the failure of the Indian Legislature to give a standard definition for the same under Section 9(2)(c). This time-delay, in turn, may act counter-productive for efficient and effective delivery of justice until a fixed and standard definition is reached by the Indian Legislature, which is far from sight.

  • Examining Obscenity in Myntra’s Logo through the Test of Contemporary Standards over Hicklin’s Test.

As evident from the previously mentioned arguments, we comprehend that there exists a degree of variability in the interpretation of “obscenity” under criminal law, that can be paralleled to “scandalous or obscene matter” in intellectual property. Due to the existence of such variability, the Indian Courts are entrusted with the responsibility of interpreting “obscenity.” This is another area of concern because the power to decide what is obscene and what is not obscene is vested in the hands of a few individuals, i.e., the judges. This renders the process of judicial interpretation of “obscenity” problematic because it leads to an undemocratic decision-making process as the probability of personal bias and subjectivity existing in the minds of the judges is high. The same probability of personal bias and subjectivity existing while interpreting “obscenity” was observed in the Samaresh Bose v. Amal Mitraas emphasized earlier.

Initially, obscenity was determined by the Courts through the Hicklin’s Test: “[H]icklin test postulated that a publication has to be judged for obscenity based on isolated passages of a work considered out of context and judged by their apparent influence on most susceptible readers, such as children or weak-minded adults.” However, Hicklin’s test was determined inappropriate because the Supreme Court, in Aveek Sarkar v. State of West Bengal(“Aveek Sarkar’’), held that the current standards and dynamics of the whole society must be considered, and not that only of sensitive persons. Due to this, the Hicklin’s Test was replaced with the Test of Contemporary Standards in Aveek Sarkar wherein the Supreme Court held that: “[W]e have to examine the question of obscenity in the context in which the photograph appears and the message it wants to convey.”

Considering the fact that Hicklin’s Test does not give comprehensive results by failing to consider a holistic perspective – as it tests obscenity “only” on susceptible or sensitive persons – unlike the Test of Contemporary Standards – that tests obscenity on the current standards and dynamics of the society as a whole from the viewpoint of a common person of prudent sense –  it becomes quintessential to apply the latter to determine whether Myntra’s Logo was obscene or not.

In the Aveek Sarkar case, the Supreme Court lucidly held that:

[A] picture of a nude/semi-nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.

From the aforementioned observation of the Supreme Court and an analysis of the Draft Manual of Trademarks Practice and Procedure which states “Scandalous marks are those likely to offend accepted principles of morality,” we comprehend that the Logo has to be considered as a whole wherein its foundation must/should not, in any manner whatsoever, have the tendency to corrupt or deprave any person who is likely, in all relevant circumstances, to see the Logo. However, in Myntra’s case, at the prima facie level, the logo is merely an alphabet “M” that does not have the tendency to corrupt or deprave any person who is likely, in all relevant circumstances, to see the Logo. It is only after an unnecessary over-scrutiny and analysis of the Logo that leads to a highly unlikely perception that it is “obscene” and goes against the accepted principles of morality.

At this juncture, it is pertinent for us to understand the third point of conundrum at hand: Unnecessary Over-Analysis of the Logo. In Myntra’s Case, it is prima facie evident that the Logo has been over-scrutinized unnecessarily that was not from the viewpoint of an average person and the image was not taken in the context as a whole, rendering it contrary to the Aveek Sarkar case and thereby failing the Test of Contemporary Standards.

Further, this over-scrutiny may also be understood from the observation made in the case of S Rangarajan v. P Jagjivan Ram wherein the Supreme Court essentially held that the standards that are to be applied for judging a film – on the basis of obscenity – should be from the viewpoint of an ordinary person of common sense and prudence and not that of a “hypersensitive man.” Although the case deals with films, the core ingredient lies in that of testing obscenity. In Myntra’s case, we observe that a gross over-observation has been made in the Logo from the viewpoint of a hypersensitive person because, at the first few observations of the Logo, it is highly unlikely for a person to perceive it as derogatory and obscene to women. The same possibility of unlikelihood is proven from the fact that Myntra’s logo has not been objected till December 2020, i.e., over 10 years since its registration as a trade mark in India. Further, it is also quintessential for us to understand that this objection arises from a single person only, implying the objection running the course of an over-sensitive perception.

Even if we accept the fact that the logo “M” does represent a woman spreading her legs, the problem lies in the fact that the spreading of such legs is being perceived as something sexually “indecent”, thereby somehow becoming “obscene.” The very fact that such spreading of legs is not being perceived as a woman taking rest or anything similar but as a woman giving a sexual invitation by spreading her legs and by supposedly being “obscene,” is inherently troubling because this narrow perception leads to the stigmatization of certain bodily postures. This further instils a problematic ideology that the spreading of legs by a woman, even if for sexual purposes, is a matter of “nudity” combined with “obscenity”; the ideology that must be instilled is that spreading of such legs by a woman, whether for sexual purposes or otherwise, is an exercise of her free sexual and bodily choice. Even if the spreading of such legs is considered “nudity,” it might not necessarily constitute “obscenity,” as held in the case of Ajay Goswami v. Union of India wherein the Supreme Court held that, for judging a work, it must be viewed as per the contemporary standards and from the sense of a common person, not that of a hypersensitive person. In Myntra’s case, it is lucidly evident that even if the Logo is viewed as “nude,” it is not “obscene” unless viewed from the perception of a hypersensitive person. Therefore, this stigmatization and instillation of a worrying ideology leads to a restraint on a woman’s bodily freedom and autonomy by being subjected to toxic societal perceptions.

This is the part-I of article authored by Pushpit Singh, student at Symbiosis Law School, Hyderabad.

Leave a Reply

Your email address will not be published. Required fields are marked *