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Profaning The Profound
Religion Relegated To Merchandise
The majority judgment in Zaheer-ud-Din invoked the trademark law to argue that Islamic principles and practices can be denied to Ahmadis on the analogy of trademark law. Abdul Qadeer J cited Indian and Pakistani trademark Laws and penal code and observed:
“The law for protection of trade and merchandize marks exists, particularly, in every legal system of the world to protect the trade names and marks etc. with the result that no registered trade names or mark of one firm or company can be used by any other concern and a violation thereof, not only entitles the owners of the trade name or mark to receive damages from the violator but it is a criminal offence also.” 01
and concluded that:
“It is thus clear that intentionally using trade name, trademarks, property marks or descriptions of others in order to make believe others that they belong to the user thereof amounts to an offence and not only the perpetrator can be imprisoned and fined but damages can be recovered and injunction to restrain him issued. This is true of goods of even very small value. For example the Coca Cola Company will not permit anyone to sell, even a few ounces of his own product in his own bottle or other receptacles marked coca cola, even though it’s price may be a few cents. Further, it is a criminal offence carrying sentences of imprisonment and also fine. The principles involved are; do not deceive and do not violate the property rights of others” 02
One would hate to believe that Abdul Qadeer J considered faith a salable commodity. Trademark law does not apply to deeply held religious epithets & practices. Faith and religion, worship and devotional acts are sublime and spiritual and are so personal between God and man, that no mundane, physical or commercial give and take or sale and purchase is conceivable. Who can claim monopoly or trademark on eternal verities and universal concepts, ideas, gifts and bounties of mother nature, or word of God meant for the whole humanity. It is an absurdity to apply trademark law to religion.
Coming to the material aspect, it needs to be appreciated that the trademark law protects the commercial interest of the manufacturer or designer. Only the originator, manufacturer or designer can claim the exclusive right against another manufacturer or designer. Abdul Qadeer J surely does not believe that the mainstream Muslims of any denomination whatsoever are the designers, originators or manufacturers of Islam. The origin of Islam is divine and universal and the prophet of Islam is mercy for entire universe. According to the Muslim belief, even the Holy Prophet (SAS) is not the originator, inventor or the author of Qur’an, which is literally the word of God revealed to the Holy Prophet Muhammad(SAS). No one can claim trademark of any religion, which is of divine origin and has been vouchsafed and bestowed upon mankind by God.
Then again, the trademark relates to the visible marks, words or names and not to the natural constituents and contents. Coca Cola cannot claim that no other company producing beverages can use water, sugar, caffeine, preservatives, additives or other ingredients. Juices and Jams of another manufacturer cannot be sold under the name of Michels Juices or Michels Jams. But that does not preclude any other manufacturer from the use of fruits, vegetables and other ingredients used by Michels. The contents and the ingredients are nature’s bounty and a universal heritage. No one can claim a copyright or trademark over them. A perfumer may bottle and sell, rose, lavender or sandal under a trade name but cannot monopolize the fragrance of rose lavender or sandal.
Even if the trademark law could by any stretch be applied to religion, it would at best apply to the name of Islam. The name having been denied to Ahmadis, the content, the teachings and the practices, which Ahmadis believe to have been ordained by God cannot be denied to them by any self-styled ecclesiastical or political hierarchy on the analogy of trademark.
There are many schisms in Islam giving rise to different sects. These sects may be viewed as different versions of Islam with varying degree of emphasis on any particular aspect or principle of Islam. On the analogy of Abdul Qadeer J. Shia, Sunni, Daobandi, Barelvi, Ahle-Hadith, Ahle-Qur’an etc are all different brands of Islam. There are also Saudi, Egyptian and Iranian versions and interpretations of Islam. Following the analogy of Abdul Qadeer J. in the light of the observations made above, it would appear that Islam is the universal heritage and bounty of God and these different sects have adopted their different Brand Names for the different formulae of the same ingredients derived from the same source i.e. Qra’an and Sunnah. If there can be 72 Brand Names why not 73? Who can claim a monopoly on the teachings of Qur’an? Can Saudi’s claim exclusive right against Egyptians or Iranians or can Deobandis do so and exclude Barelvis and so on?
But it seems that such fanatic claims are not the monopoly of Pakistani clergy alone. Such fundamentalist fanatics may be found elsewhere also. But such claims have never been accepted. American experience can be cited here with some benefit.
A group of eminent lawyers and university professors of Minnesota USA, referring to this aspect of Zaheer-ud-Din cited as many as five cases from the American Jurisdiction where such claims of monopoly over some religion or religious practice were brought to the court. In each case, the court rejected the claim. The Minnesota lawyers cited the following cases :
and observed that:
“Drawing an analogy between the Coca-Cola Company’s trademark use and Ahmadis representing themselves as Muslims, the Court accused Ahmadis of infringing upon the use of Islamic terminology and practices, because they are non-Muslims according to Article 260(3) (a) of the Pakistan Constitution. Id at 1753-54. This unfortunate analogy is insupportable under United States law. 03
and citing the cases referred above concluded that:
“The McDaniel decision, and the other decisions cited above, properly elevate religious expression above commercial endeavors. Religion cannot be treated as merchandise, nor can religious practices be copyrighted. Religion is universal in nature and thus cannot be owned by anyone in particular. Comparing prayers to trademarks and religions to corporations equates the mundane world of commerce with the sublime and spiritual realm of religion. An analogy between trademark law on one hand, and religion on the other, denigrates the religious beliefs of all.” 04
In short, to treat religion as a commodity is to desecrate and profane the name of religion. The analogy is most unfortunate.