‘Scandalous’ and ‘Obscene’ Trademark Law: Determining the scope of morality-based proscriptions in Indian Law

Morality-based restrictions on trademarks are a ubiquitous element of domestic trademark legislations, appearing in 163 out of 164 WTO member states. In 2019, the United States Supreme Court ruled against the constitutionality of these provisions in Iancu v. Brunetti, and opined that they run afoul of American free speech jurisprudence. The Court’s discomfort was with the structure of the legislative proscription, and they emphasized the significance of linguistic regulation rooted in moral principles within trademark law. The Indian counterpart of these provisions suffer from a unique problem: despite being a part of the legislative framework for over four decades, no legislative or judicial body has interpreted morality-based proscriptions in India. Examining the administrative practices of the Indian Trade Marks Registrar and reviewing the Indian Trade Marks Register convey an inconsistent application of this provision. The findings highlight a need to develop comprehensive guidelines. This paper underscores the legislative language of Australian law as the closest analogue to Indian law on the subject and proposes an overarching framework for discerning the import and meaning of ‘scandal’ and ‘obscenity’ within the context of Indian law.