‘M’ FOR MYNTRA: THE INTERSECTION OF INTELLECTUAL PROPERTY AND OBSCENITY

INTRODUCTION

The e-commerce website Myntra was recently embroiled in a significant controversy over its trademark logo after an NGO claimed that the logo was vulgar and insulting to women.  The Myntra logo is written in pink and orange using overlapping shapes.  In December 2020, Naaz Patel of Avesta Foundation NGO filed a complaint alleging that the Myntra logo was indecent and derogatory to women.[1]  Thus, forcing  Myntra to revamp its five-year-old visual brand mark. The Mumbai Police Cyber Crime Department received a complaint regarding this. They deemed it to be offensive without any additional explanation or complete justification. Such an explanation would have been valuable to understand the factors that made the emblem offensive to women. In response to the complaint, the e-commerce behemoth promised to alter its logo.[2]

THE TRADE MARKS ACT, 1999

In today’s rapidly changing world, trademarks play a critical role in protecting not only the interests of these traders but also in helping to establish a brand image. A trademark is a “distinguishing characteristic or feature firmly associated with a person or thing.”[3]  In India, The Trademarks Act, 1999[4] governs trademarks. Furthermore, section 9(2) of the Act gives a few grounds for the non-registration of Trademarks. Section 9(2)(c) states that “A mark shall not be registered as a trademark if- (c) It comprises or contains scandalous or obscene matter.”[5]

Now, the challenge is to understand  “what is the threshold for obscenity & scandalous under the act?” For which the statute fails to provide any statutory definition. It is also apparent from numerous judgments of Indian courts that even the courts have not provided a specific meaning of words in the context of intellectual property in many cases. Thus, giving the courts flexibility in interpreting and interpreting its meaning. In Dubai Islamic Bank v. Union of India,[6] the Supreme Court held that “the individual factors governing the parameters for refusal to grant registration of a mark are subjective.” It further states that “the scandalous or obscene nature of the mark is subject to review from time to time”. Furthermore, in the case of Samaresh Bose v. Amal Mitra[7] the issue raised was, “What is considered to be obscene?” To which the supreme court stated that “Judge with a puritan and prudish outlook may be based on an objective assessment of any book or story or article, consider the same to be obscene. On his objective appraisal of the same book, another Judge with a different kind of outlook may not deem the same book to be obscene.” Thus, the interpretation of this section of the trademark act is decidedly vague. According to the Proposed Trademark Manual for Comments, “whether a mark is obscene or not is a question of fact, and it is up to the applicant to show that it isn’t when confronted with objections under this Section.”[8] This gives the power of interpretation of “obscenity” and “scandalous” to the Indian courts, which means it lies with individual judges. Such a practice is not without flaws. In these instances, one may question the existence of personal bias in the already subjective matter.

In the precedent of Sarkar v. West Bengal[9], the court discarded the originally used Hicklin’s Test due to its holistic perspectives, and the Test of Contemporary Standards was adopted to test the alleged “obscenity”. The court held that “obscenity should be examined in the context of in the context in which the photograph appears and the message it wants to convey.” It was also held that “The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it.” The decision also cleared the door for obscenity to be evaluated from the perspective of the average person, using contemporary community norms.  While, in Myntra’s case, the prima facie logo is an alphabet, it is only after unnecessary over-scrutiny that can lead one to remark the logo as obscene[10]. At prima-facie, no portrayal whatsoever can be interpreted to suggest that the logo wants to convey any obscene message. It can be argued here that the perspective that Myntra’s logo is Obscene is of a hyper-sensitive person and not of an average person. As in the whole existence of the logo, it was the first time that any person has objected to the same in such a long time, implying the objection running the course of an over-sensitive perception.  Therefore, failing the Test of Contemporary Standards. Furthermore, the Supreme Court’s observation in the case of S Rangarajan v. P Jagjivan Ram[11], where the Supreme Court essentially held that the standards to be applied for judging a film based on obscenity should be from the perspective of an ordinary person with common sense and prudence, not a “hypersensitive man,” explains this over-scrutiny.

The perception that the spreading of legs by a woman is something sexually indecent thereby somehow becoming “obscene” and not anything similar like giving birth or a resting position instead of a “sexual invitation” is troubling as such a narrow perspective can lead to certain body posters being stigmatized.

INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986

Sections 2(c)[12] of the act define “Indecent Representation of Women”, which when read along with  Sections 2(a), (b), (d), and (e)[13] of the Trade Mark Act, which tends to discuss the usage of labels on packaging material, might prove futile for Myntra. But this can be countered with the argument that the “Myntra logo seems indecent only on over-analysis and not at prima facie.” Since in the case of R. Basu v. National Capital Territory of Delhi[14] the court accepted the possibility of the application of the 1986 act as the film played was “obscene”-prima facie. Therefore, an argument can be made that for the application of the Indecent Representation of Women (Prohibition) Act, 1986, it is necessary to make a prima facie case of indecent representation. This seems to be missing since it is over-screened in an unnecessary way that does not represent the typical person’s perspective, and the image is not taken as a whole. The ‘M’ in the Myntra logo was not considered “morally unacceptable” by the public[15]. Instead, it was a single complaint.

THE INDIAN CONSTITUTION, 1949

Also, public morality should not become a ground that can bar a trademark, even if the Indian public is offended. As its implications cause serious violations of Article 19(1)- Freedom of Speech and Expression[16]. Practically, the refusal of trademark registration which is purely based on point of view and one viewpoint is deemed superior to another viewpoint is discriminatory. Such restrictions violate freedom of expression. Obscenity is subjective, and opinions about it differ from person to person. Trademarks that question society’s subjective concept of morality are denied registration. When determining whether a trademark violates a moral value, it is critical to consider how the general public sees it and not a single person or community.  The ‘M’ of the Myntra logo cannot be considered “morally unacceptable” by the public. As it was a single complaint citing problems with it.

CONCLUSION

The Myntra dispute is a peculiar case because although the “M” logo is alleged to be offensive and “obscene”, it can be argued that it is just an English letter on the surface. The Trademark Law lacks a definition of ” obscenity and scandalous matter “, which has led to varying degrees of interpretation of the term by Indian courts. The problem is that even if a woman spreads her legs, it does not mean that it is a sexual invitation. This view is a deceptive ideology. Considering the ever-evolving dynamics of Indian society, nudity is not necessarily confused with “obscene” because, in this age, nudity has started to be accepted by people. It is of great importance to realize that this type of trademark restriction from an “obscene” perspective violates the basic right of expression. The review of the Myntra logo appears to be an unnecessary step because the nature of the complaint made appears to be too sensitive. But this is not the only incident, because Amazon has recently been forced to change its new logo, part of which, according to the public, resembles the controversial toothbrush mustache of Nazi dictator Adolf Hitler. Amazon revised the symbol. The subjective nature of these words created obstacles and was abused to some extent. This case is a good example of how small issues can be publicized and attract the attention of people on the Internet who have contributed to this cause.

Author(s) Name: Hetavi Bari (NMIMS, Navi Mumbai)

References:

[1] Sanath Prasad, ‘Hurting sentiments vs over activism: Design dilemmas triggered by Myntra logo case’ The New Indian Express (Bengaluru, 01st February 2021 <https://www.newindianexpress.com/cities/bengaluru/2021/feb/01/hurting-sentimentsvs-over-activismdesign-dilemmas-triggered-by-myntra-logo-case-2257679.html> accessed 06 September 2021

[2] Divyesh Singh, ‘Myntra to change its logo after complaint calls it ‘offensive’ towards women’ India Today (Mumbai, January 29, 2021) <https://www.indiatoday.in/india/story/myntra-to-change-logo-complaint-mumbai-police-offensive-towards-women-1763988-2021-01-29> > accessed 06 September 2021

[3]Merriam Webster, ‘trademark’ (Merriam-Webster.com Dictionary) <https://www.merriam-webster.com/dictionary/trademark> accessed 9 September 2021.

[4] The Trade Marks Act, 1999

[5] The Trade Marks Act, 1999, s 9(2)(c)

[6] Dubai Islamic Bank v. Union of India W.P. (C) 12749/2019

[7] Samaresh Bose v. Amal Mitra 1986 AIR 967

[8] Patent Design & Trademarks, ‘A Draft Of Manual Of Trade Marks Practice & Procedure’ (Government of India Ministry of Commerce &Industries 2015)

[9] Aveek Sarkar v. State of West Bengal (2014) 4 SCC 257

[10] Pushpit Singh, ‘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’ <http://www.nlujlawreview.in/the-point-where-intellectual-property-and-obscenity-intersect-analysis-of-section-92c-of-trademarks-act-1999-in-context-of-the-myntra-case-part-1/> accessed 30 September 2021.

[11] Rangarajan v. P Jagjivan Ram 1989 SCR (2) 204

[12] Indecent Representation of Women (Prohibition) Act, 1986, s 2(c)

[13] The Trade Marks Act, 1999, s 2(a)(b)(d)(e)

[14] Mr. R. Basu v. National Capital Territory of Delhi

[15] Pushpit Singh, ‘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 2’ <http://www.nlujlawreview.in/the-point-where-intellectual-property-and-obscenity-intersect-analysis-of-section-92c-of-trademarks-act-1999-in-context-of-the-myntra-case-part-2/> accessed 30 September 2021.

[16] The Indian Constitution, 1949, art. 19(1)

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