‘Scandalous’ and ‘obscene’ trademark law: determining the scope of morality-based proscriptions in Indian law

Abstract

Morality-based restrictions on trademarks are prevalent in trademark legislations worldwide, existing in 163 out of 164 WTO member states. In 2019, the United States Supreme Court held that such restrictions fall afoul of their free speech jurisprudence. Yet, in the process, the Court explicitly emphasized the significance of linguistic regulation rooted in moral principles within trademark law. Despite having housed these provisions for over four decades, no legislative or judicial body has interpreted morality-based proscriptions in Indian law. The administrative practices of the Indian Trade Marks Registrar and a review of the Indian Trade Marks Register demonstrate extreme inconsistency and incoherence in applying the ban against ‘scandalous’ and ‘obscene’ content in Indian trade mark law. These findings highlight the urgent need for comprehensive guidelines that combine legislative heritage and insights from Australian law to establish a consistent framework for identifying the import and meaning of ‘scandal’ and ‘obscenity’ in Indian law.