Applicant sought category wise number of unconventional trademark applications made based on smell, sound, taste, shape, motion, texture etc. - CIC: As category wise details are not maintained, provide the total number of applications filed
24 Jul, 2023Information sought:
The Appellant filed an RTI application dated 14.10.2022 seeking the following information:
“I request your good self to provide me with the following details:
1. The complete details of unconventional trademarks registered in India till date. (i.e., the registered owners name and details, the registered mark, and the mode in which the mark was represented at the time of application.)
2. The Total number of unconventional trademark applications made till date. (Divided based on the type of unconventional mark - smell, sound, taste, shape, motion, texture etc.)
3. The details of unconventional mark applications which have been rejected and the ground for rejection.
4. The details of unconventional mark applications which have been granted registration and the reason for granting the same.”
The CPIO furnished a reply to the appellant on 16.11.2022 stating as under:
“No such type of data is maintained in the office.”
Being dissatisfied, the appellant filed a First Appeal dated 19.11.2022. FAA’s order, dated 13.12.2022, upheld the reply of CPIO. Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through audio-conference.
Respondent: Rajamanic Kam, Asst. Registrar & CPIO present through audioconference.
The Appellant invited attention of the bench towards his latest written submissions filed prior to hearing wherein he inter alia stated as under (reproduced below in verbatim) –
“….6. That the complainant submits that the Office of Controller General of Patents, Designs and Trade Marks, Mumbai is a public authority. “Public authority” as defined in Section 2(h) “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; of the RTI Act means any authority or body or institution of self- government established or constituted—
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by state legislature;
(d) by notification issued or order made by the appropriate Government,
and includes any—
(i) body owned, controlled or substantially financed;
(ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government.
The Office of Controller General of Patents, Designs and Trade Marks falls under the Department of Industrial Policy & Promotion which is a Central Government Department under the Ministry of Commerce and Industry in India and hence is a public authority under the RTI Act, 2005.
7. That the complainant submits that the information sought is an ‘information’ under the RTI Act, 2005. Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the RTI Act defines information as any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form, and information relating to any private body that can be accessed by a public authority under any law for the time being in force.
8. That the requested information, namely the application numbers of the non conventional trademarks, undoubtedly qualifies as information as defined by the RTI Act. The complainant pleads that no opinion or advice of the CPIO is sought in the RTI applications and the information sought is directly connected to the functions and activities of the Controller General of Patents, Designs and Trade Marks. Nonconventional trademarks are an important aspect of intellectual property rights and their details are of significant public interest. The public authority, being responsible for handling and processing applications related to trademarks, is expected to maintain records and information regarding such matters. It is a record held by the concerned public authority and falls under the purview of accessible information under the Act.
9. That the RTI Act, 2005, aims to promote transparency and accountability in the functioning of public authorities. By denying access to the requested information, the public authority is undermining the very purpose and spirit of the legislation.
10. That the complainant submits that the two RTI applications dated 14.10.2022 and 13.12.2022 can be clubbed together as the subject matter and public authority in both the applications are same. Both RTI applications pertain to the same subject matter, i.e., the details of non-conventional trademarks. Given the interconnected nature of the information sought and the fact that the CPIO in both the cases are same who has consistently denied the information, the complainant pleads the Hon'ble Central Information Commission to club these two RTIs together for the sake of clarity and efficiency in resolving the matter. Combining these applications will ensure a holistic understanding of the issue and facilitate an informed decision. The Hon’ble Central Information Commission in the case of Shri R.K. Jain v. Ministry of Statistics & Programme Implementation, New Delhi (2015 SCC OnLine CIC 3473) [ANNEXURE VI] has clubbed and heard complaints emerging from similar RTI applications.
11. That the complainant submits that access to information does not mean mere access but means easy access. The complainant pleads that the consistent denial of the CPIO indicates that the concerned public authority is least interested in upholding the purpose of the RTI Act, 2005. The RTI Act, 2005 aims to ensure that information held by public authorities is made available to the public or in other words the public should have access to information held by public authorities. ‘Access’ in this context should not mean mere access wherein the authorities can claim that the requested information is already available in the public domain and the citizens have to research and find the same from thousands of documents available in the public domain. Access should refer to nothing but easy access or in other words, the whole purpose of the RTI Act, 2005 and the authorities under the Act is to facilitate access to information.
12. That the Hon’ble CIC in Sanjeev Rathod v. Public Information Officer (2009 SCC OnLine CIC 1967) [ANNEXURE VII] has held that “Every public authority must facilitate access to information to citizens by making the entire process of seeking information as user friendly as possible.” The same position was retained by the Hon’ble CIC in Mr. Gursharan Singh v. The CPIO O/o the Pr. Chief Commissioner of Income Tax (2017 SCC OnLine CIC 387) [ANNEXURE VIII].
13. That the complainant submits that rejecting the RTI application on the ground that the data is maintained as per application numbers may be reasonable, however, refusing to disclose the application numbers of unconventional trademarks and other requests as put forth in the RTI application dated 13.12.2022 is unreasonable, unjustifiable and arbitrary.
Hence, the complainant begs the intervention of the Hon’ble CIC in this matter.”
In response to Appellant’s contentions, the CPIO submitted that the records of unconventional trademark applications are maintained by their authority only application number wise and not in the form of categories as sought by the Appellant. Thus, the factual position has already been intimated to the Appellant accordingly.
However, at the behest of the Commission, the CPIO agreed to provide the total number of registered unconventional trademark applications to the Appellant as per available records.
Decision:
The Commission upon a perusal of records finds no infirmity in the initial factual response of the CPIO as the same was found to be as per the provisions of RTI Act.
However, in furtherance of hearing proceedings, the CPIO is directed to intimate the total number of registered unconventional trademark applications as per available data free of cost to the Appellant.
The above said direction should be complied by the CPIO within 15 days from the date of receipt of this order under due intimation to the Commission.
The appeal is disposed of accordingly.
Saroj Punhani
Information Commissioner
Citation: Karun Sanjaya v. Trade Marks Registry, CIC/CGPDT/A/2022/666690; Date of Decision: 23/06/2023