The Benelux Office for Intellectual Property (BOIP) has refused (in dutch) to register the Allah sign illustrated as a device mark in the trademark register.
Click here to view the sign.
Trademark law distinguishes between absolute and relative grounds for invalidity, also called grounds for refusal. Absolute grounds for refusal apply if the trademark is generally deemed inadmissible. Relative grounds for refusal relate to third-party rights. The BOIP only tests on absolute grounds.
The BOIP informed the filer of the sign, the artist Teun Castelein, that it refused the device mark (for, inter alia, leather goods, clothing and footwear) on the basis of the following ground for refusal: ‘The ALLAH sign, the name for God used in Islam, will not be regarded as a trademark and is therefore devoid of any and all distinctive character.’
Refusal to Register vs. Existing Trademarks
To what extent are religious signs successfully registered in the trademark register? Innumerable examples can be found in the register of Benelux and European registrations of religious signs as trademarks. For instance Jesus, Jesus is my Homeboy and Big Buddha for clothing, God is busy, can I help you? for a television program, God Tube for a video network and the well-known trademarks of clothing manufacturer Gsus.
In the past, the Shiva sign (the name of the Hindu god) was successfully registered for (pornographic) movies. But then the BOIP took the position – after a lot of indignation – that it had not realised that Shiva ‘is more than just a girl’s name’.
The BOIP had probably not realized either that Jesus and Mohammed are more than boy’s names when it registered these names as trademarks. It is even harder to understand what the BOIP was thinking when it registered the many Ganesh trademarks, since Ganesh is one of the most important Hindu gods. All in all, we may conclude that the government (the BOIP being a government institution) is contributing to the monopolization of religious signs.
But why is it possible to register Jesus or Big Buddha for clothing, but has the Allah sign for, inter alia, clothing been refused? The rationale of this cannot be understood from a pure trademark-law perspective. After all, why would Jesus for clothing indeed have distinctive character and Allah not?
Furthermore, the case of the Allah trademark concerns a device mark with stylized letters, and not, as is the case with Jesus, only a word mark. In my view, this already gives the Allah sign more intrinsic distinctive character than the – registered – Jesus trademark. Incidentally, the question is to what extent it is desirable at all that religious names can be monopolized for commercial purposes; but this is a completely different discussion. This article only deals with the question why similar issues are treated differently by the BOIP.
The artist can in any case still file an objection or lodge an appeal against the refusal. In view of registrations such as Jesus, he would certainly not seem without chance in advance.
Meanwhile, another trademark filing has been made: ALLAH for telecommunications services. We will have to await the BOIP’s reaction to this, but it seems obvious that it will stick to its above-mentioned position.