Use of Gandhi's portrait on commemorative pen prohibited

Following a writ petition filed by the Centre for Consumer Education before the Kerala High Court, Montblanc has been ordered not to use Mahatma Gandhi’s portrait on a commemorative pen "until further orders in the matter".

The petitioner alleged that Montblanc’s use of Gandhi’s portrait violated the Emblems and Names (Prevention of Improper Use) Act 1950. Section 3 of the act prohibits the commercial use of any national symbol, name or emblem specified in the schedule to the act. Entry 9A of the schedule prohibits the use of the name or pictorial representation of well-known historical personalities, including Mahatma Gandhi, Pandit Jawaharlal Nehru, Shrimati Indira Gandhi, Chatrapati Shivaji Maharaj and the prime minister of India. Use of the names Gandhi, Nehru and Shivaji on their own is also prohibited. However, it is permissible to use such names or pictorial representations on calendars that are not used for advertising purposes.

Montblanc had reportedly requested permission from the Indian government, but the latter had replied that Gandhi's image could not be used pursuant to the act. Montblanc argued that the act itself vested the government with the power to permit such use.

Mahatma Gandhi’s great-grandson, Tushar Gandhi, has been criticised for endorsing the use of Gandhi’s portrait on various products, including the Montblanc pen. For instance, Tushar Gandhi granted permission to CMG Worldwide to use Gandhi’s image in an advertisement for a credit card company. Widespread criticism resulted in the deal dying a natural death. When asked about the basis for his decision, Tushar Gandhi reportedly stated that CMG Worldwide might have approached him as a precautionary measure, referring to a US case relating to the use of Martin Luther King’s persona without the permission of his family or estate. Tushar Gandhi's decision to allow Montblanc to use Gandhi's portrait has also been criticised by one of Gandhi's grandsons and ex-governor of West Bengal, Ram Mohan Gandhi.

It has been reported that the charitable foundation run by Tushar Gandhi has received a donation of $145,000 from Montblanc and was to receive a consideration for each pen sold.

This article first appeared in World Trademark Review Daily, published by The IP Media Group (www.worldtrademarkreview.com).