Blue border and IP: God bless (and protect) the Saint Mother Teresa and her stripes

White saree with three blue borders has been recognised as IP of Missionaries of Charity

India is making news again on the Intellectual Property (IP) front. After the successful trademark registration last month by The Indian Hotels Co Ltd (vide application no. 715972) of the architectural design of the famous Taj Mahal Palace hotel in Mumbai, the famous blue lined white saree of Mother Teresa has been recognized as an Intellectual Property of the Missionaries of Charity based out of Kolkata.

The white saree with three blue borders, the outer border being wider than the two inner ones is today worn by all nuns of the Missionaries of Charity. It has been recognised as Intellectual Property of the organisation as on the fourth of September, 2016, coinciding with the day the Mother was canonized. Legend has it that Mother Teresa had bought the plain white, blue-patterned saree from M.G. Road in Kolkata in 1948. The border of the saree had two small blue stripes followed by a wider stripe. She got it blessed by Father Van Exem at the Sacristy of the Convent Chapel. And wore the same designed saree ever after as she went out to serve the poor and the destitute on the streets of Kolkata. Similar kinds of sarees are now woven by leprosy patients of the Gandhiji Prem Niwas at Titagarh in North 24 Parganas, in the state of West Bengal and are worn by the Missionaries of Charity nuns across the world.

Applications were filed before the Trade Marks Registry on December 12, 2013 and after necessary due diligence and necessary procedures being followed, the registrations were granted after nearly three years. In order to commemorate the sainthood of Mother Teresa, the Government of India symbolically granted the trade mark registration on September 4, 2016, despite it being a Sunday.

Born on 26 August, 1910 at Skopje in Macedonia in a Catholic family and baptised as Agnes Gonxha Bojaxhiu, the diminutive Albanian nun came to India in 1929 as Sister Mary Teresa and went to Darjeeling for her novitiate period. She learnt Bengali and taught at St Teresa’s school near her convent. Teresa took her first religious vows on 24 May 1931. She chose to be named after Thérèse de Lisieux, the patron saint of missionaries. But because a nun in the convent had already chosen that name, Agnes opted for its Spanish spelling, Teresa. Teresa took her solemn vows on 14 May 1937 while she was a teacher at the Loreto Convent school in Entally, eastern Calcutta. She served there for nearly twenty years, and was appointed its headmistress in 1944.

On 10 September 1946, Teresa experienced what she later described as ‘the call within the call’ when she travelled by train to the Loreto Convent in Darjeeling from Calcutta for her annual retreat. She began missionary work with the poor in 1948, replacing her traditional Loreto habit with a simple, white cotton sari with a blue border. Teresa adopted Indian citizenship, spent several months in Patna to receive basic medical training at Holy Family Hospital and ventured into the slums. In 1950 Teresa founded the Missionaries of Charity. The rest as they say, is history.

The interesting part of the blue and white saree IP is that the protection was awarded almost nine months ago but the Missionaries went public with the information only last evening, begetting the question, why it took them that long. The answer may lie in the indiscriminate commercialization of the Saint by diverse publics. We ourselves were amongst the first buyers of the Lladro ‘Mother Teresa of Calcutta’ which has the distinctive saree clothed on the Saint.

Famous Bengali artist Ajay De too is well known for his Mother Teresa series of charcoals. His works too have the Saint wearing the now trademarked blue bordered, white saree.

All this will now have to stop, or at least will require the permission of the Missionaries of Charity. The permission will most likely also come with a price tag, pulling in funds for the charity organization which will make the IP of real value.

In our article in https://www.business-standard.com, titled ‘Image trademark for Taj Mumbai:

Smart or senseless?’ [https://www.business-standard.com/article/companies/image- trademark-

for-taj- mumbai-smart- or-senseless- 117062100199_1.html], we had touched on the IP registration of the Yves Klein Blue colour. We had also covered in some detail, the colour trademark by Tiffany & Co. of the Tiffany Blue colour which is a private custom colour of Pantone with PMS number 1837, derived from the year of Tiffany’s foundation.

In the current case of the Missionaries’ IP, it needs some clarification on whether the IP is 1. For the ‘blue’ colour? This will then require the exact Pantone composition to be trademarked. We believe this is not the case. 2. For the combination of stripes? Maybe yes. 3. For the totality of the white saree with a thick blue border and two thinner parallel stripes? This is most likely the IP for which the protection has been provided.

Recently the Delhi High Court decreed in favour of John Deere for its agricultural equipment especially Tractors, Harvesters and Combines in a unique green and yellow colour combination based on the submission that the said colour combination has been used by them since 1918.

Though there aren’t many judicial precedents on the point of trademark protection for a colour or combination of colours, the position of law is clear in terms of what the law permits in this regard. The definition of a mark under the Trademark Act, 1999 includes ‘combination of colours’ and therefore it can be construed that colours can be protected in relation to goods and services under the Trademark Act. Section 10 of the Act states that a trademark can be limited to a particular colour or combinations of colours. However, such limitation as to colour will only be allowed on determining the distinctive character of the mark. However, if no colour has been specifically claimed, then it shall be deemed to be registered for all colours.

Hitherto, the main reason for not allowing single colours but only combination of colours to be registered in India stems from the fear of colours being ‘depleted’. But the Indian courts and the Trade Mark Registry need to remember that this ‘Colour Depletion Theory’ only bars the registration of the seven basic colours, and not any shade artistically or aesthetically specially created. Shades of any colours are very much registerable if they can be represented by an internationally coded combination of colours. When the colour has become synonymous with a brand, it can be allowed to be registered for better protection of that brand. In fact, Colgate Palmolive has been able to obtain a trademark for its white and red packaging combo under the definition of a ‘trade dress’.

Maybe the IP protection granted to the Missionaries is also best defined as a ‘trade dress’. Because, it is not just the colour but the entire combination of the white saree, the thick blue border and the two parallel blue stripes. Nevertheless, if it has already not been done, the blue colour itself will require articulation of the exact combination leading to the Mother’s colour. And the entire saree with the thick and thin stripes will then constitute a legally enforceable Intellectual Property.

May the Saint and her Stripes always be protected and blessed!

Sandeep Goyal is Chairman of Mogae Media, and an advertising veteran of 30 years.

Carol Goyal is a lawyer by training. She is currently specialising in Art Law in London.