Guest Post by Shekhar Hattangadi*

A fountain-pen and a few paintings have recently captured the headlines for all the wrong reasons. Here is my column (“Pens and Pennants”) on the Gandhi Pen and Tagore Paintings imbroglios written for the DNA. The thrust of my argument is that both the controversies could have been nipped in the bud by the Centre with some timely and thoughtful action.

My original submission had an additional angle relating to international law, which was excised for space constraints. On the issue of jurisdiction in the international arena—which appears to render symbols of our national honour vulnerable to commercial exploitation outside of India’s territorial limits—I point out that these could be safeguarded abroad as if they were part of a patent or a trademark. For this, the concerned government would need to register those symbols/emblems with the registering authority of the Paris Convention for the Protection of Industrial Property, 1883.

On the paintings, I suggest that no existing statute anywhere in the world gives India any legal right to those [Tagore] painting. Does that mean a symbol of national honour becomes a legal orphan beyond our borders? Not really. Article 6 of the Paris Convention for the Protection of Industrial Property, a treaty administered by the World Intellectual Property Organization and signed by 184 member-countries including India, recognizes prohibitions concerning “state emblems and official hallmarks” and protects them from commercial exploitation in the global marketplace.

But clearly, these refer to our national flag and other state-endorsed insignia such as the Ashok Chakra crest, and even a Tagore-worshipping Bengali would have to concede that a painting by the Nobel Laureate, however artistic, falls short of being a state emblem and is therefore outside the purview of the Paris Convention.

* The author is a Mumbai-based lawyer and law professor.