Electoral symbols and trademarks
Elections have always fascinated everyone in different ways. Whatever be the allure, one impressing feature that cannot be missed in the whole process is — the symbol. Irrespective of the literacy quotient of an individual, the symbol of a particular candidate or party is correctly identified and associated with the person or party for casting the vote. This makes election symbols an interesting study vis-à-vis another equally intriguing aspect of public importance — trademarks.
Can these two divergent aspects of public importance that deal with the intellect converge? I have pondered why not an election symbol that has etched an identity amidst masses serve the purpose of a trademark and vice versa? It is a tricky proposition for either of the two to cross their respective realms.
The similarity between an election symbol and a trademark starts with their respective role on recollection, identification, association, patronage, propriety and ends with goodwill; all intangible, intellectual and of course, a matter of pride. The dissimilarities between the two are more than six. Nevertheless, in a country over a billion people, six recognised national political parties and 48 recognised state political parties, symbols of both the realms co-exist and have a life of their own.
While there is nothing in law that prohibits use of an election symbol by a commercial entity as a trademark for its business, the use of somebody’s trademark as an election symbol might pave the way for infringement proceedings and other cause of actions. Nevertheless, such occurrence is not new and can happen with the consent of the symbol’s proprietor.
Opportunistic and enterprising as it may appear, equating election symbols to that of trademarks and laying claims of exclusivity thereby have been held improper by courts on the basis that the concept of a symbol and trademark stands on two different footings altogether. As a matter of fact, trademarks are actually contrary to the purpose of election symbols. One of the criteria of a trademark is the view of a man of an average intelligence and with imperfect recollections — which may cause a debacle for a political party.
Though use of each other’s symbols may seem a possibility, the likelihood of creating confusion and myriad doubts amongst public that may also include associating the party with the business entity or vice versa cannot be ruled out. Questions on integrity and motive too may be cast which may not savour well to either of the two realms. As such, enough scope for confusion exists within the respective spheres not sparing even the facilitating electronic machines. Lalu Prasad as a Member of Parliament while participating in a discussion on the Motion for Consideration of the Representation of People (Amendment) Bill was referring to the functioning of electronic voting machine as: “Hum keh rahe hain ki lantern ke samne wala button dabana, wah button lantern ka dabata hai aur vote cycle ko pad jaata hai. Cycle ka jo daba raha hai, wah kamal mae ja raha hai, jo haath par daba raha hai, wah haati par ja raha hai…” (I tell people to press the button in front of the (symbol) lantern, but when the button for lantern is pressed the vote gets cast in favour of cycle. If it is pressed for cycle, it gets cast in favour of lotus and when it is pressed for hand, it gets cast in favour of elephant…”). The House burst into laughter but can a commercial enterprise afford to laugh off such confusion?
Like the sound of the cymbals, quick attention may be achieved amidst the public but then the distinct basic purpose of symbols in both the spheres would be lost. A piggy-riding between these two different realms can either flourish or vanish based on the performance of the political party or the commercial entity, product and service under such a common symbol. Prudence says to maintain a symbolic distance between the two realms.