Is this a copyright infringement?

badayuni92 · Post by **badayuni92** » Fri Jun 22, 2012 5:15 pm

Hi hope everyone is well. I am new to this forum and have some questions, I would be so grateful if someone can help me.

I am setting up a company and just wanted to know if my logo is breaking the law in any kind of way, from an infringement point of view.

The logo is based on the emblem of india but has been subtly changed with the addItion of a british flag and some writing

Thanks for your help[/img]

AndyJ · Post by **AndyJ** » Fri Jun 22, 2012 9:59 pm

Hi badayuni,
I assume that this is the emblem you are referring to:

(image from wikipedia commons)

If so, then as far as I can tell no copyright is claimed in the image which was first adopted by the Indian State in 1950. Since the current emblem is based on a very old (ie more than 2000 years old) emblem, I suspect that under UK copyright law this would be considered to be in the public domain. Also there doesn't seem to be a UK or Community registered trade mark for the emblem.
However, it would appear from an Indian Statute - The State Emblem of India (Prohibition of Improper Use) Act 2005 - that India takes the matter of misuse of the emblem very seriously. Not only is it illegal to use the emblem for improper purposes within India, the Act also places a similar prohibition on "citizens of India outside India".
So if you hold Indian citizenship or dual British/Indian citizenship, you may find yourself in trouble if you return to the sub-continent, after using the emblem in the way you describe.
Furthermore, you would not be permitted to register your logo as a UK or EU Trade Mark, as the use of national emblems is prohibited by s 57(2) of the Trade Marks Act 1994:

57 National emblems, &c. of Convention countries: Article 6ter.
(1) A trade mark which consists of or contains the flag of a Convention country shall not be registered without the authorisation of the competent authorities of that country, unless it appears to the registrar that use of the flag in the manner proposed is permitted without such authorisation.
(2) A trade mark which consists of or contains the armorial bearings or any other state emblem of a Convention country which is protected under the Paris Convention or the WTO agreement shall not be registered without the authorisation of the competent authorities of that country.
(3) A trade mark which consists of or contains an official sign or hallmark adopted by a Convention country and indicating control and warranty shall not, where the sign or hallmark is protected under the Paris Convention or the WTO agreement, be registered in relation to goods or services of the same, or a similar kind, as those in relation to which it indicates control and warranty, without the authorisation of the competent authorities of the country concerned.
(4) The provisions of this section as to national flags and other state emblems, and official signs or hallmarks, apply equally to anything which from a heraldic point of view imitates any such flag or other emblem, or sign or hallmark.
(5) Nothing in this section prevents the registration of a trade mark on the application of a national of a country who is authorised to make use of a state emblem, or official sign or hallmark, of that country, notwithstanding that it is similar to that of another country.
(6) Where by virtue of this section the authorisation of the competent authorities of a Convention country is or would be required for the registration of a trade mark, those authorities are entitled to restrain by injunction any use of the mark in the United Kingdom without their authorisation.

badayuni92 · Post by **badayuni92** » Fri Jun 22, 2012 11:04 pm

Hi Andy,

Thanks for your reply is there anyway i can email you draft of the logo and you could perhaps tell me if i am breaking any laws in the UK, additionally if i sell my products abroad with this logo am i in breach of any other laws? I am not an indian citizen and i do not have dual citizenship

Thanks for your help

AndyJ · Post by **AndyJ** » Sat Jun 23, 2012 7:56 am

H badayuni,
There's not much point in sending me your logo as I cannot offer you a legal opinion on its status. The best thing I can do is set out the law as best I can, and let you make a decision based on that.
I think that if you are content not register the logo as a trade mark, and you do not intend to specifically trade with India, then there would probably be no problem with you using the adapted emblem, under copyright law.
The only area of doubt might lie with the common law tort of passing-off. The Indian High Commission in London could take the view that in using their state emblem you were seeking to make people think that your company was somehow officially connected to the Indian state, or was authorised by India to trade in whatever products or serevices you sell. Since this would be a civil matter it would be up to the High Commission to decide whether or not to bring an action to prevent the use of the emblem in this way.
It is clear from the part of the Trade Marks Act which I quoted previously, that the law generally sets out to discourage this sort of use of national emblems, so it is hard to say which way a decision might go if the matter did go to court.