Electoral Symbols as Trademarks in India
Article by Arundathi K, 4th year Law Student, Symbiosis Law School, Hyderabad- Runner up of IP Matters' National IP Essay Writing Competition 2021
Elections and the activities associated with them have always been a matter of broad and current interest in India. On the thought of political representation , we always stop along the way to consider our political parties, and more often than not, their electoral symbol remains a vivid image of the association. Electoral symbols were first introduced for recognition of a party by voters who could not read and write. It still plays a crucial role in such recognition. This article discusses the purpose electoral symbols serve as a trademark of sorts, to represent a certain political party. The onset of this discussion will begin with similarities between electoral symbols and trademarks, and move on to the legal aspect of whether electoral symbols can be registered as a trademark in India. Through this article, the question of whether political parties in India have a right over their electoral symbols, and attempts to establish the jurisprudence revolving around this subject from the Indian perspective is addressed. Through the deliberation of global trends, an attempt to incorporate a holistic overview of the subject will be made.
The study of electoral symbols in relation to trademarks on the subject of public utility raises a very curious question, that is, “Can the electoral symbol, or the symbol of a political party be registered as a trademark?”. While the concept of trademark registration of electoral symbols in India is typically unheard of, it is a common practice in other countries.
Electoral Symbols v. Trademark
An electoral symbol can be understood to be a standardized symbol that is allocated to a particular political party in a country. Though they were introduced as a measure to aid illiterate persons while casting their vote, electoral symbols are associated with the identity and recognition of a political party. The Election Symbols (Reservation and Allotment ) Order of 1968 is the law governing the use of these symbols, it was promulgated by the Election Commission of India and provides for the “specification reservation, choice and allotment of symbols at elections in Parliamentary and Assembly constituencies, for the recognition of political parties”. A trademark is a type of intellectual property which acts as a symbol or mark that a company, product or service is recognized by The Trade Marks Act of 1999 is the Indian Law governing the same, and it defines a trademark as “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.” A trademark functions to make the owner of the trademark-the manufacturer, trader or company offering the service known to the public, and creates an association of it with the product. From the perspective of the customer or the person to whom the service is provided, it acts as an assurance of the quality of the product through its association with a certain brand or name. Ergo, a trademark becomes a symbol of reputation, quality and the origin of a product or service. Moreover, it creates an association of the symbol with the trademark owner in the minds of the public and facilitates its recognition.
This is where the similarities between a trademark and electoral symbols begin. The electoral symbol, or symbol of a political party, is used for the purpose of identification of the party or politician during the casting of votes in an election. Though this association was devised primarily for election purposes, the association of the symbol to the party even otherwise is inherent. A trademark represents patronage to the brand through affiliation, the same way that an electoral symbol represents patronage to a particular political party through similar affiliation. Trademark confers a proprietary right on the owner of the trademark, as an election symbol is conferred a temporary proprietary right  over its usage, by the Election Commission of India. The trademark is associated with the value of goodwill of a particular product or service, the same way an electoral symbol is associated with the goodwill of a political party. This association through goodwill becomes an important facet of branding, both for the commercial success of a product, and of a party in the elections. All these similarities are “intangible, intellectual and a matter of pride”.
The Indian law on registration of electoral symbols as trademarks
Even though electoral symbols fall within the scope of trademarks, the Indian law does not provide for its registration. On the contrary, it explicitly prohibits it. According to the provisions of the Trademark Act of 1999, “Representation of the Election Symbol of any political party in India” falls within the purview of trademarks that are not registrable in view of Section 23 (1) of the Trademarks Act.9 Section 4(b) of the Emblems Act  has laid down that an emblem or name cannot be registered as a trademark or design if it is used in contravention of Section 3 of the Emblems Act. The schedule specified by Section 3 of the Act provides that the marks enlisted therein cannot be registered. The schedule enlists within it symbols used by political parties which restricts it from being trademarked. 
The Indian Judiciary has on various occasions supported the view that electoral symbols may not be considered as the intellectual property of a political party, and hence it cannot be registered. Reliance may be placed in the case of Sadiq Ali and Anr. vs. The Election Commission of India and Ors ,where it was held that “The election symbol of a political party does not become its intellectual property”. This was reaffirmed on various occasions such as the 1985 case of Kanhar Lal Omar  where it was held that an electoral symbol does not amount to property as it is neither tangible nor generates any wealth. However, a slight deviation from this concept may be observed in the more recent judgement of the High Court of Delhi in Hans Raj Jain V. Election Commission Of India  which has upheld the prohibition of registration of electoral symbols as trademark due to the lack of monetary implications of political parties. However, it is important to note that the Court considered a slightly different alternative which implied that politics is generally understood to have that monetary implication among the general public, who consider it to be “trade”.The Court made this comment in the light of politics now being recognised as a profession. Although there are no legal implications to this statement, it is certainly noteworthy for offering a different perspective on the subject of registration of electoral symbols as trademarks.
Although trademark filings by political parties are typically unheard of, a very curious development in this regard would be the trademark application filed for the “NaMo Tea Party” which is a grouping of professionals who came in support of Prime Minister Narendra Modi by backing the Chai Pe Charcha campaign of the BJP government. Interestingly, this registration was sought to be filed under Class 45 which is the trademark classification for “personal and social services rendered to meet the needs of individuals.” The status of this application appears to be now abandoned, rather than dismissed. This brings us to the bigger picture of the class in which electoral symbols could be registered as trademarks. Apart from Class 45, owing to the applicational importance Class 16 (Paper, cardboard and goods made from these materials, not included in other classes; printed matter; bookbinding material; photographs; stationery; adhesives for stationery or household purposes; artists' materials; paint brushes; typewriters and office requisites (except furniture); instructional and teaching material (except apparatus); plastic materials for packaging (not included in other classes); playing cards; printers' type; printing blocks )and Class 25 (Clothing, footwear, headgear) may be considered from the perspective of election campaigning.
Political symbols as trademarks in India
The registration of political symbols and logos as trademarks is a trend that is very common in countries around the globe. Starting with the United States, National and Federal parties in the US have filed for and received trademark approval in their respective jurisdictions. The Republican Party holds trademark registration  for its logo of an elephant, while the Democratic Party has registered its trademark of a capital D inside a circle, as well as a logo containing the words “I will vote”.
In the United Kingdom, the two major political parties, namely the Labour Party and the Conservative Party have registered, or have applied for registration in some cases for trademark protection of their party logos.  The law in Canada provides for trademark registration of political party logos, and even saw a recent trademark tussle over the logo of the People’s Party of Canada. In a nutshell, the trademark protection of political party logos is indeed a common practice, with special provisions of law governing the same.
While election symbols serve the purpose of a trademark, the recognition of it in India warrants provisions for its intellectual property protection. Although the Courts have upheld that political symbols are not intellectual property of any particular political party, reserving the right of the Election Commission to take away the recognition of the symbol when called for, the temporary proprietary right of political parties over their party symbols may be devised. This will substantially limit the litigation in Court regarding the awarding of electoral symbols. Moreover, trademark protection of political party logos and even names will prove helpful in a fairer electoral process as it limits the scope for registration of similar marks which purposely create confusion among the voters about the identity of the associated party. This will provide remedies to the parties as well, in cases of such passing off and wilful misrepresentation. This protection will also provide better scope for the branding of political parties in the way that it is done by parties outside India, the pre-existing and established identity of which may even take down the cost of election campaigning in India. In addition to this, the unauthorised use of political parties can be settled through the existing Intellectual Property laws in India. There have been instances where major political parties in countries such as the United States of America have used their IP rights as a weapon against opposition criticism, by claiming infringement of their trademark through its unauthorised use by political opponents in their campaigning process.
The biggest argument that remains is that electoral symbols in India are allotted by the Election Commission to the political parties, and hence it is not their creation. Even though the electoral symbols are conferred upon or allocated to the political parties are not a creation of their intellect, the association of these symbols with the party and its goodwill should constitute an important factor in its trademark protection. In case electoral symbols are allowed to be a trademark, it would be important to mandate that it conforms with the Symbols order, which the legislature is very well competent to do.
Rachit Garg, Laws on the election symbols and recognition of political parties, IPLEADERS, (April.13, 2021,10:04 am), https://blog.ipleaders.in/laws-on-the-election-symbols-and-recognition-of-political-parties/.
Sadiq Ali and Anr. vs. The Election Commission of India and Ors,(1972) 4 SCC 664
The Emblems And Names (Prevention Of Improper Use) Act, 1950, No 12, Acts of Parliament (1950)
The Trade Marks Act,1999, No 47, Acts of Parliament (1999); §. 2(zb).
WIPO, Introduction To Trademark Law & Practice-The Basic Concepts: A Wipo Training Manual, Wipo Publication No 653(E) (1993).
Subramanian Swamy v. Election Commission of India, AIR 2009 SC 110
Opinion, “Electoral symbols and trademarks'', The New Indian Express (05th June 2011 11:08 PM), https://www.newindianexpress.com/opinions/2011/jun/05/electoral-symbols-and-trademarks-259865.html
IPIndia, “Manual of Trademarks: Patent and Procedure”, Government of India Ministry of Commerce &Industries Office of Controller General Patents, Designs & TradeMarks, 64 (2015).
The Trade Marks Act,1999, No 47, Acts of Parliament (1999); §. 23.
The Emblems And Names (Prevention Of Improper Use) Act, 1950, No 12, Acts of Parliament (1950); §.4(b).
The Emblems And Names (Prevention Of Improper Use) Act, 1950, No 12, Acts of Parliament (1950); §.3.
RK Dewan & Co, “Who(What) Cannot Be Trademarked?”, https://www.lexology.com/library/detail.aspx?g=4f68db5a-a860-45a7-a5f3-656943742c46
Kanhiya Lal Omar V. R.K.Trivedi & Ors, (1985) 4 SCC 628
Hans Raj Jain V. Election Commission Of India,2015 SCC OnLine Del 8173
Application number 2673369
US Registration Number 1892445 and 1908397.
US Registration Number 4139881.
US Registration Number 5061751.
IP Finance, “UKIP - Political Parties, Branding and Trade Marking”(3 October 2017), http://www.ip.finance/2017/10/ukip-political-parties-branding-and.html
CTVNews, The Canadian Press, (February 19, 2019 1:30PM), https://www.ctvnews.ca/politics/b-c-man-says he-owns-copyright-trademark-for-people-s-party-of-canada-name-1.4303472?cache=yesclipId104062