Mainstream WeeklyIn a democracy, freedom of speech and expression opens up channels of free discussion of issues. This right plays a crucial role in the formation of public opinion on social, political and economic matters. Commercial speech is defined as speech that suggests a commercial transaction or expression solely related to economic interest.
The High Court of Delhi held that a purely commercial advertisement which does not take into consideration the essential idea of freedom of speech would be ineligible for protection. Trade activities cannot have the protection of Article 19 (1) (a) of the Indian Constitution until and unless it is in the ‘public interest’.
The Supreme Court of the USA in Virginia State Board of Pharmacy V. Verginia Citizen’s Consumer Council (1976) observed that advertisement was indeed the dispersal of information essential to have a predominantly free business, and it is a matter of public interest that decisions of consumers should be intelligent and well-informed, so that the free-flow of information serves the public decision-making. The above view exemplified the belief that commercial speech would not be differentiated from other categories of protected speech in its ability to inform the public.
The Right to Freedom of Speech and Expression under Article 19(1) (a) of the Indian Constitution does not simply extend to communication but also includes the right to acquire and disseminate information. The Courts find it difficult to define or illustrate speech as non-commercial when it is motivated by profit and commercial, despite containing issues of public importance.
The Supreme Court of India, in many cases, held that advertising is also a way of disseminating information. The Court also emphasised the importance of commercial speech to a free media, finding that advertisements are crucial to keeping prices down. Laws that curtail advertising are resulting in decreased newspaper circulation due to higher prices, which would be unconstitutional.
The European Union (EU) has used criteria to determine the commerciality of speech, which involves understanding the character of speech, which is determined through the enterprise’s objective.
In India, Section 9 of The Trademark Act (1999) contains the provision of clause 2 of Section 9, which provides that a trademark shall not be registered as a trademark if-------
a-It is of such nature as to deceive the public or cause confusion;
b-it contains or comprises any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;
c- It comprises or contains scandalous or obscene matter;
d- It’s prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.
Recent trademark rules in India have modernised the ecosystem by extending protection to digital assets and non-traditional marks like sound and colours. Additionally, the draft reforms have been introduced to tighten professional accountability, ban misleading advertisements, and improve ethical governance among the practitioners.
In order to make this assessment, Trademark must be objective, not subjective in nature. Objectivity means being neither out of date nor a trend setter; not setting some kinds of moral standard, but also not being insensitive to public opinion.
The Delhi High Court in Horlicks and Anr Vs. Heinz India (2019), dismissed an injunction on the ground that an advertisement is the feature of the commercial speech that is protected by Article 19 (1) (a) of the Indian Constitution and the information in the advertisement is a necessary component of the right of the public to receive information. Stimulating competition between suppliers of goods and services is in the consumer’s interest.
The legal provisions concerning the symbol of protection of a political party in India primarily outline the following legislation: The Trademark Act, 1999. This Act regulates the Registration and use of trademarks in India, including limitations on using political Party symbols as trademarks.
The Act, The Emblems and Names: Prevention of Improper Use) Act, 1950, prohibits the use of specific emblems and names, including those of political parties, for commercial purposes without prior approval. Collectively, these laws establish a framework that safeguards political party symbols from unauthorised commercial use while allowing for limited exceptions. In contrast, political party symbols do not serve a commercial purpose; rather, they represent ideological affiliations and collective values.
While Trademarks are embedded in the marketplace, designed to generate profit and market differentiation, political symbols exist within the public sphere to facilitate political expression and participation. By maintaining a clear distinction between the two, we can preserve the integrity of political symbols as tools for democratic government.
The protection of political parties’ symbols underscores the delicate balance between Trademarks and national interest. Trademarks empower individuals and businesses to protect and exploit their creations. It also recognises the importance of safeguarding certain societal elements, such as political party symbols, from private ownership and monopolisation.
In India, the balance is maintained by restricting the use of political party symbols, and representation of shared values and beliefs remains collectively owned by the public. Limited exceptions are allowed for public purposes, but the overarching principle of non-propritorship ensures that symbols of political significance are preserved for the collective interest of the nation rather than for individual exploitation.
Trademark protection primarily aims to incentivize business to innovate and invest in their brands. By granting exclusive right to use a mark, the law encourages companies to develop unique products and maintain high standards that ultimately benefit consumers in the economy. Political party symbols, however, lack this economic impetus. If political symbols are to receive trademark protection, it could lead to the commodification of political identities.
This would fundamentally alter the nature of political engagement, reducing political affiliation to a marketable asset rather than a means of expressing ideological beliefs. Such a shift could create disparities in political representation and influence who can assert rights over their symbols.
Protecting political symbols under trademark law could undermine the core value of democracy and public service. The Indian judiciary played a crucial role in interpreting the laws surrounding the registration and misuse of political party symbols. One significant case in the Indian National Congress V. Election Commission of India, The Indian National Congress challenged the registration of a new political party that used a symbol resembling the INC’s ‘hand’ symbol. The court emphasised the need for distinct symbols for political parties to prevent voter confusion and maintain electoral integrity. It directed the Election Commission to ensure that registered symbols are not misleadingly similar.
However, it is difficult to have a clear view of the non-protective ability of commercial speech. In TATA Press V. MTNL, the Supreme Court declined a law restricting yellow pages from being published categorically held that ‘Commercial speech’ is a part of freedom of speech and expression guaranteed under Article 19 (1) (a) of the Indian Constitution on the premise that such speech would also serve a democratic purpose.
Such reasoning is confusing and makes it very difficult to understand whether trademarks clearly devoid of any political or expressive value should be denied the Freedom of speech. Those that fulfil some democratic function should be protected under Article 19 (1) (a).
The Court has taken into consideration that the reasoning should be as fair as possible. Freedom of speech and expression, as guaranteed by the Constitution, does include commercial speech such as trademarks and their advertisements. Freedom is good as long as it is not misused. Any such misuse of the right to speech and expression needs to be curtailed by law.
Trademark law allows for the ‘fair use’ of political party symbols when the ‘use’ is descriptive, non-commercial, and does not imply any endorsement by the political party. Further, section 9 of the Trademarks Act (1999), provides that political party symbols may be used as Trademarks in cases where the political party itself grants licensing. This is rare and typically limited to specific party-affiliated organisations that are authorised to use such symbols for official purposes.
Similarly, certain artistic representations of political symbols are allowed, provided they do not distort or disrespect the symbol. This exception is often involved in cases involving works of art or literary expressions that incorporate political symbols in a manner intended to promote awareness and education about political identities.
In all cases, the purpose, context and non-commercial nature of the use are key factors in determining whether these exceptions apply to political symbols, flags and other insignia, which is essential to preserving the integrity and identity of political parties.
While trademark grants broad protection to individuals and businesses, the rights are not absolute when it comes to political party symbols. Case law and statutory provisions highlight the limitations on their use, ensuring that these symbols remain free from commercial exploitation.
The judiciary of India has consistently upheld the sanctity of political party symbols and rules against their unauthorised use in trademarks and other commercial contexts. The legal framework in India, thus, reinforces the need to protect political party symbols while still allowing exceptions for educational, artistic and non-commercial uses.
(Author: Dr. Sunita Samal, Political Commentator also author of ‘Human Rights and International Order in the Context of Liberalism, Civil Society and Rule of Law’ (2023) published by Asian Press Books, Kolkata)