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Trademark tangle: Will the Indian Medical Association be able to adopt a new ‘red cross’ logo?

The Geneva Convention prevents the use of any symbol similar to the Red Cross emblem of the International Committee of the Red Cross.

The Indian Medical Association is going to prescribe a new emblem to help the public distinguish doctors with MBBS degrees from practitioners of Ayurveda or Unani who often misleadingly refer to themselves as doctors. The new symbol is going to be a red cross with the word “Dr.” written at the centre. The Indian Red Cross Society has already raised an objection to the use of such a symbol on the grounds that it resembles the symbol of the International Committee of the Red Cross or ICRC.

Speaking to The Hindu, the president of the Indian Medical Association KK Aggarwal explained that the logo would be different from the Red Cross logo. “We have used a lighter red shade for the cross, and we also have the abbreviation ‘Dr’ in the centre, which will differentiate the logo,” Aggarwal told the newspaper.There is no duplication as far as we are concerned. This is to ensure that quacks are contained. The world over we have white, blue, green cross. That doesn’t mean that we can’t use cross for as a symbol.”

However, going by the history of the ICRC’s efforts to prevent the use of its symbol, the Indian Medical Association may not find it all that easy to adopt this new logo.

Set up in 1863, the primary goal of the ICRC was to provide for improved care for wounded soldiers in wartime. It was responsible for getting governments to agree to the Geneva Convention to set down minimum standards of treatment of soldiers during conflicts and also introduced the Red Cross against a white background as a common symbol to be used by medical services in conflict situations.

The Red Cross is often identified with Christianity. The Red Cross is also seen as a color reversal of the Swiss National Flag. Similarly the official explanation of the red crescent that is used in Islamic countries, instead of the Red Cross, is that it is the colour reversal of the flag of the Ottoman Empire.

In India, there has been at least one instance in 2002 where the Ahmedabad Medical Association, in response to a campaign by the RSS backed Arogya Bharti, decided to promote the use of the Swastika sign by doctors after a controversy over using a red cross. Although the Swastika was made notorious by the Nazis during World War II, it owes its origins as a symbol of Hinduism and is still used in India.

In India, Parliament enacted the Geneva Convention Act, 1960 – an Act to put into effect international conventions agreed to at Geneva in 1949 to which India is a party – prohibiting the use of the Red Cross or any confusingly similar design without the approval of the Central Government. According to this legislation, unauthorised use of the Red Cross is punishable with a fine of Rs 500 and any goods bearing the symbol would be liable to forfeiture.

Red cross, green cross

Historically, the ICRC has faced an uphill battle to ensure that the Red Cross is not used without its authorisation. Not long ago, pharmacists, doctors and hospitals across India liberally used a red cross on their premises and vehicles to signify their association with the medical profession. It took considerable effort by the ICRC to convince pharmacists and hospitals to stop using any red cross signs. This is one of the reasons that pharmacies these days adopt a green cross.

A decade ago, when the ICRC was fighting to stop medical practitioners in India from using the Red Cross, the Indian Medical Association was involved in a campaign to inform the profession that a red cross mark should not be displayed. A news report from 2007 highlighting the role of the association said: “The Indian Medical Association (IMA), the representative body of doctors in India, is not resisting the change. ‘When the Red Cross insists, we have to obey,’ says IMA secretary general SN Misra.”

The Indian Medical Association has already adopted the “Rod of Asclepius” on its flag. This symbol – a serpent entwining a rod – is associated with the Greek god of medicine and healing, Asclepius.

(Image: Twitter)
(Image: Twitter)

It is therefore surprising that, the association now feels that it needs a symbol other than the Rod of Asclepius to distinguish between allopathic and other doctors and has decided to a adopt a red cross symbol across the profession. It is possible that the association has misunderstood the law on the point and is assuming that it can use a red cross because it believes it has received a “No objection certificate” or NOC from the Intellectual Property Office in response to a trademark application filed by the IMA. The Hindu report quotes from this saying, “no trademark identical with or deceptively similar to the said artistic work has been registered or applied for registration under the Trade Marks Act 1999 as per computer record of this office.”

Section 45(1) of the Copyright Act requires NOCs from the Trademark Registry in cases when an artistic work is being registered under the Act. The NOC, however, only tells the Copyright Office that a similar mark has not been registered with the Trademark Registry, as argued in this piece. It does not mean that the mark is automatically registered as a trademark. For that, a trademark application has to be filed with the Trademark Registry. The Trademark Registry then prepares an examination report and advertises the application in the Trade Mark Journal inviting oppositions from any interested parties. Going by the newsreports on the issue, it is unclear what the IMA’s position is.

Even presuming that the Indian Medical Association’s trademark is registered, the Trade Marks Act protects what are essentially negative rights. This means that once a trademark is registered, the proprietor of the trademark has the right to restrain others from using the identical or similar mark for identical or similar goods and services. The law protects prior users, which means, in this case, if the ICRC can show that it has been using the mark for 150 years, it cannot be stopped from using the mark even if Indian Medical Association gets a registration. However, registration under the Trade Marks Act does not give the proprietor the right to use a mark, if it has otherwise been prohibited by any other law.

Therefore, in this case, even if the Indian Medical Association succeeds in registering this new logo as a trademark, the ICRC can challenge this based on its own history of using the Red Cross since the mid-19th century as also the fact that the Geneva Convention Act, 1960 prohibits the use of the symbol. The Indian Medical Association would then have to brace for a trademark battle at the courts or settle for a different emblem.

Prashant Reddy Thikkavarapu blogs at SpicyIP and is author of a book on intellectual property in India.

Corrections and clarifications: This story has been updated to explain the procedure related to no-objection certificates issued by Trademark Registry.

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Removing the layers of complexity that weigh down mental health in rural India

Patients in rural areas of the country face several obstacles to get to treatment.

Two individuals, with sombre faces, are immersed in conversation in a sunlit classroom. This image is the theme across WHO’s 2017 campaign ‘Depression: let’s talk’ that aims to encourage people suffering from depression or anxiety to seek help and get assistance. The fact that depression is the theme of World Health Day 2017 indicates the growing global awareness of mental health. This intensification of the discourse on mental health unfortunately coincides with the global rise in mental illness. According to the latest estimates from WHO, more than 300 million people across the globe are suffering from depression, an increase of 18% between 2005 and 2015.

In India, the National Mental Health Survey of India, 2015-16, conducted by the National Institute of Mental Health and Neurosciences (NIMHANS) revealed the prevalence of mental disorders in 13.7% of the surveyed population. The survey also highlighted that common mental disorders including depression, anxiety disorders and substance use disorders affect nearly 10% of the population, with 1 in 20 people in India suffering from depression. Perhaps the most crucial finding from this survey is the disclosure of a huge treatment gap that remains very high in our country and even worse in rural areas.

According to the National Mental Health Programme, basic psychiatric care is mandated to be provided in every primary health centre – the state run rural healthcare clinics that are the most basic units of India’s public health system. The government provides basic training for all primary health centre doctors, and pays for psychiatric medication to be stocked and available to patients. Despite this mandate, the implementation of mental health services in rural parts of the country continues to be riddled with difficulties:

Attitudinal barriers

In some rural parts of the country, a heavy social stigma exists against mental illness – this has been documented in many studies including the NIMHANS study mentioned earlier. Mental illness is considered to be the “possession of an evil spirit in an individual”. To rid the individual of this evil spirit, patients or family members rely on traditional healers or religious practitioners. Lack of awareness on mental disorders has led to further strengthening of this stigma. Most families refuse to acknowledge the presence of a mental disorder to save themselves from the discrimination in the community.

Lack of healthcare services

The average national deficit of trained psychiatrists in India is estimated to be 77% (0.2 psychiatrists per 1,00,000 population) – this shows the scale of the problem across rural and urban India. The absence of mental healthcare infrastructure compounds the public health problem as many individuals living with mental disorders remain untreated.

Economic burden

The scarcity of healthcare services also means that poor families have to travel great distances to get good mental healthcare. They are often unable to afford the cost of transportation to medical centres that provide treatment.

After focussed efforts towards awareness building on mental health in India, The Live Love Laugh Foundation (TLLLF), founded by Deepika Padukone, is steering its cause towards understanding mental health of rural India. TLLLF has joined forces with The Association of People with Disability (APD), a non-governmental organisation working in the field of disability for the last 57 years to work towards ensuring quality treatment for the rural population living with mental disorders.

APD’s intervention strategy starts with surveys to identify individuals suffering from mental illnesses. The identified individuals and families are then directed to the local Primary Healthcare Centres. In the background, APD capacity building programs work simultaneously to create awareness about mental illnesses amongst community workers (ASHA workers, Village Rehabilitation Workers and General Physicians) in the area. The whole complex process involves creating the social acceptance of mental health conditions and motivating them to approach healthcare specialists.

Participants of the program.
Participants of the program.

When mental health patients are finally free of social barriers and seeking help, APD also mobilises its network to make treatments accessible and affordable. The organisation coordinates psychiatrists’ visits to camps and local healthcare centres and ensures that the necessary medicines are well stocked and free medicines are available to the patients.

We spent a lot of money for treatment and travel. We visited Shivamogha Manasa and Dharwad Hospital for getting treatment. We were not able to continue the treatment for long as we are poor. We suffered economic burden because of the long- distance travel required for the treatment. Now we are getting quality psychiatric service near our village. We are getting free medication in taluk and Primary Healthcare Centres resulting in less economic stress.

— A parent's experience at an APD treatment camp.

In the two years TLLLF has partnered with APD, 892 and individuals with mental health concerns have been treated in the districts of Kolar, Davangere, Chikkaballapur and Bijapur in Karnataka. Over 4620 students participated in awareness building sessions. TLLLF and APD have also secured the participation of 810 community health workers including ASHA workers in the mental health awareness projects - a crucial victory as these workers play an important role in spreading awareness about health. Post treatment, 155 patients have resumed their previous occupations.

To mark World Mental Health Day, 2017, a team from TLLLF lead by Deepika Padukone visited program participants in the Davengere district.

Sessions on World Mental Health Day, 2017.
Sessions on World Mental Health Day, 2017.

In the face of a mental health crisis, it is essential to overcome the treatment gap present across the country, rural and urban. While awareness campaigns attempt to destigmatise mental disorders, policymakers need to make treatment accessible and cost effective. Until then, organisations like TLLLF and APD are doing what they can to create an environment that acknowledges and supports people who live with mental disorders. To know more, see here.

This article was produced by the Scroll marketing team on behalf of The Live Love Laugh Foundation and not by the Scroll editorial team.