OIF's Trademark Claims Problems

This page is part of the historical background relating to "What Is an Osho?", a slick, sannyas-paradigm-shifting policy paper written by Amrito and circulated in 1998. A deconstruction of Amrito's paper is presented on this site, introduced here. A large subset of the background addresses various aspects of OIF's claimed right to control Osho's legacy, particularly regarding the legal muscle of copyright and trademark. This page looks at some fundamental problems in OIF's trademark claims. It is sourced from Osho Friends International. For more legal pages, see OFI or Legal Main Page.

What’s wrong with OIF's claim to own trademarks?


There are two basic problems with OIF's claims to own trademarks. The first is the one pointed out in both the 2000 domain name decision and the 2009 US Trademark Board decision: Osho is not used as a trademark. Osho's given name, Rajneesh, and His pseudonym, Osho, have both been used over the past 40 years to describe all the work done by thousands of individuals and hundreds of centers around the world related to Osho's teachings and the movement that arose around Him. When Osho adopted the name Osho in 1989, He asked that it be used the same way Rajneesh had been used for so many years, and it has been used that way since 1989. Since the name is associated with Osho's entire teaching and movement, it can't be a trademark for anyone. (See Genericness).

The next big problem OIF has is one not reached by the US Trademark Board when it cancelled the trademarks because "Osho" is generic. That problem is that no one can legitimately register a trademark unless at the time of the application/registration they own exclusive rights to use that trademark in the geographical area involved (US, EU, etc.). There are a few ways someone can gain exclusive rights. They can create or "coin" the term themselves, but OIF clearly didn't coin "Osho." Osho was a title from the Zen tradition that Osho spoke about and His people asked if they could use to refer to Him. OIF has admitted this. Next, in the case of the name of a living person, the trademark claimant can have an assignment of rights from the person involved. For years OIF claimed it had an assignment of trademark rights from Osho, but this turned out to be completely false. (See The Ever-Changing Story.) The last way that a person or entity can gain exclusive rights in the marketplace is to use the mark first in commerce. This is the basis OIF now uses to claim ownership. (See First Use in the Marketplace)

Even if a trademark claimant makes the first use in the marketplace it will lose any rights it has if others also begin using it in the marketplace and do so for several years without permission or control by the claimant. This is why OIF came up with the Letters of Understanding around 1998, to claim that it had always controlled the centers and individuals who had been using "Osho" for nine years. OIF also claims that it has been exercising control over all centers since 1989. (See Abandonment and Quality Control)

Trademarks can be cancelled if the person or entity registering the trademark made false or misleading statements to the agency involved. In the US trademark case Osho Friends argues that OIF had made two major fraudulent statements to the trademark office: that Osho had assigned rights to OIF and that no one but OIF had the right to use "Osho" in the marketplace at the time of the application/registration. (See Fraud)

Finally, both the domain name decision and the US Trademark Board decision pointed out that no one can own or monopolize a religious teaching or a religious movement. People can always refer to the person Osho as an inspiration for their work. No one can ever prevent that or prevent others from forming religious centers or organizations around a religious teaching. (See Religious Freedom).

[The (sub-)topics below all had their own separate pages at OFI's site. As they are all somewhat short and relate to further discussion and clarification of OIF's trademark claims problems, they have been included here. They are all linked to their original page at OFI. Note that "The Ever-Changing Story" linked to above IS on a separate page here, as it has broader application, if it matters.]

Genericness

A word or phrase can only be a trademark if it is a "source-indicator" for one company. (See What is a trademark? for details.) Before "Osho" could be a trademark, the public would have to think that all goods and services using "Osho"—books, recordings, magazines, newspapers, meditation events, meditation sessions, therapy groups, festivals—are from the same source that guarantees the quality of all those goods and services.

In the case of "Osho," this is not the case. Some products are produced by Osho International Foundation, Zürich (OIF), other products—CDs, magazines, T-shirts—are produced by others, many different services, such as events, meditation sessions, and celebration are created by centers, while sessions, groups, and events are also created by individuals.

To make "Osho" look like a trademark, OIF has tried to claim that it has licensed and controlled all centers since "Osho" was first used in 1989. OIF has a few problems with that argument (aside from the problem that "Osho" isn't used as a trademark). (See Abandonment and Quality Control for a discussion.)

In the US no known center agreed to be licensed by OIF and some refused to sign the Letter of Understanding (which is not a trademark license). A similar situation exists in all the other geographical areas. Also, since no one can dominate or monopolize a religious teaching, new centers related to Osho's work could always open without permission from OIF (or anyone else). So, OIF's claim to permanently control all work related to the teachings of Osho could never be true.

In addition to being generic, a term that describes the goods or services involved instead of identifying the source of those goods or services is descriptive. Trademarks in the US were cancelled on both grounds.

For the legal arguments made about genericness in the US case see: See Trial Brief of Opposer/Petitioner  pp. 27–37; Reply Trial Brief of Opposer/Petitioner  pp. 4–12.)

First Use in the Marketplace

Osho International Foundation, Zürich (OIF), claims that it has used Osho as a trademark since 1989, but in the US, at least, most of the uses of "Osho" by OIF referred to the person Osho (i.e. as the author of a book or speaker in a recording) or used Osho generically to describe products or services related to the teachings of Osho. In the US case OIF attempted to use products designed after the case was filed in 2000 as evidence to prove trademark use, but only products from 1989–90 or the very early 1990s would be relevant to use of "Osho" as a trademark. If OIF did not begin using "Osho" as a trademark until 2000, any rights it once might have had were already abandoned before that trademark use began.

In the US, use of a name as the author of a book or the speaker in a recording is a reference to the person, not a trademark use unless several requirements are met. This question will need to be checked in each relevant country or area. OIF claims that it used Osho in the marketplace first because it claimed to own the copyrights to Osho's work and that OIF licensed the publication of books and recordings (including the name "Osho" as the author/performer) that were sold in the marketplace. OIF, however, never actually owned the copyrights in question.

Also, use of "Osho" for publications is only one of a long list of goods and services claimed for trademarks in Switzerland and the EU, so OIF would need to have used "Osho" first for all the goods and services in order to claim exclusive rights to all of them. For example, if OIF used "Osho" first to refer to Him as an author in some country, but a center used "Osho" first to refer to groups, events, meditations, etc., OIF would not have exclusive rights to use "Osho" for the center activities. If someone else used "Osho" for a publication, such as for the Osho Times or some other publication, OIF cannot even claim first use with regard to publications.

The dates of OIF's trademark registrations also argue against any valid claim of first use. OIF did not register any trademarks in the EU until 1998, in Australia until 1999, and in Canada until 2002. From 1989 to those dates the Osho centers in those areas had been using Osho to describe and identify all center activities and individuals had been using the name to label their activities, so OIF could not claim it had used "Osho" exclusively since 1989 in any of those geographical areas.

In the US OIF claimed that it used Osho as an author name, but since that alone is not a trademark use under US law, OIF did not press that as a first use. Even with that claim, OIF failed to produce any evidence that it licensed and controlled the books in question or evidence of when those books were sold in the US.

By the end of the US case OIF was reduced to making the desperate statement that all its claims to ownership of the Osho trademark in the US were based on the alleged "rebranding" of The Rajneesh Times to The Osho Times by OIF's "predecessor." The difficulty with this is that OIF had no "predecessor" for any trademark rights, such as "rebranding" rights. (See OIF and RF and RFI for details.) No rights in "Rajneesh," "Osho," "The Rajneesh Times," or "The Osho Times," were ever assigned to OIF by anyone. Further, there is no legal theory that would allow someone to gain ownership of someone else's name by co-opting that name for a new brand without an assignment from the person named. There is no such thing as ownership by "rebranding." OIF, of course, never received any assignment from Osho.

[A claimant can gain exclusive rights by coining a term and using in exclusively the marketplace, by adopting a term and using it exclusively in the marketplace, or by an assignment from the person who owns rights, but OIF did none of those things.]

The Rajneesh/Osho Times was published by Tao Publishing in Pune, and OIF was not able to produce any documentation that showed any connection between Tao and OIF that would transfer trademark rights to OIF. In fact, far from being controlled by OIF, Tao in 1989 claimed in its masthead to own all of Osho's copyrights. This means that Tao was actually a competitor of OIF in claiming those copyrights in 1989.

The example used in the US case shows how far OIF will stretch to try and manufacturer an appearance of first use in a geographical area. Any claims to first use that OIF makes in any country or area should be carefully checked out in detail to see if they can stand up to scrutiny. Since the reality is that Osho asked everyone to use His new name, Osho, in 1989, and people around the world did so at about the same time, it will be virtually impossible for anyone to claim first exclusive use in the marketplace for all goods and services related to Osho's teachings.

For more discussion of this topic see: Trial Brief of Opposer/Petitioner  pp. 45–48.

Abandonment and Quality Control

Even if some person or entity was able to prove first use of a trademark in the marketplace for a good or service, if other people began using the same term to describe their independent goods and services at around the same time and continued to do so for several years, any rights created by the first use would be abandoned.

At some point OIF realized that any claim it might make to trademarks had been abandoned because all Osho centers and many individuals had been independently using "Osho" for at least nine years. OIF had to recreate history to try and make it appear that the centers had not, in fact, been independent during that time.

Around 1998 OIF or Global Connections in Pune had sent out Letters of Understanding (LOUs) for centers to sign. Either at that time, or at some later point, OIF decided to claim that these letters were legally binding trademark licenses for the use of "Osho" on behalf of OIF. Neither OIF nor Global Connections informed the centers of this belief before LOUs were signed or for several years after.

When Osho Friends pointed out that the LOUs were not only not trademark licenses, but that they were nine years too late, OIF claimed that it had formed legally binding oral licenses with all Osho centers in the world to use Osho in 1989. OIF was unable to produce one scrap of competent testimony or documentation to support this theory and was unable to show why it would have owned any exclusive rights in "Osho" to license to centers in 1989 anyway, since it had no assignment from Osho.

In reality, the Letters of Understanding (LOUs) aren't legitimate trademark licenses. (See Trial Brief of Opposer/Petitioner pp. 18–21; 40–41; Reply Trial Brief of Opposer/Petitioner pp. 17–18.) (See also, OIF and the Osho Centers)

For a discussion of the oral license claim see: Trial Brief of Opposer/Petitioner [link] pp. 21; Reply Trial Brief of Opposer/Petitioner pp. 18–19.)

OIF used a significant portion of it's brief in the US case to claim that it had exercised "quality control" over the centers. This "control" generally consisted of things like casual visits or travel by Vatayana to lead meditation groups for profit that were retroactively characterized as "inspections," visits to Pune that were characterized as "training," and various claims to control the activities at the Pune center, which OIF has no legal authority to do. (See OIF and Pune for a discussion.) Of course, OIF has no right to "control" what it doesn't own in the first place.

A legitimate trademark holder has a product or service that it licenses others to sell in the marketplace under the trademark. For example, a fast-food franchise is authorized to sell chicken prepared by a certain process using a certain recipe. The goods or services originate with the trademark holder.

In the situation of Osho's work, none of the activities of individuals or centers originate with OIF. Osho's meditation techniques have been in the public domain for many years, since Osho authorized wide use beginning in the 1960 and never exercised control. Other activities like publications, meditation sessions, meditation events, groups, workshops, personal sessions, meditation and celebration events, festivals, classes, cultural events, retreats, and so on, have never originated with OIF. They have originated with individuals and centers that have been inspired by Osho and His teachings. This has been true for many years.

This means that OIF's relationship with the Osho centers is not the relationship of a trademark holder, since none of the goods or services originate with OIF. The relationship OIF seeks to impose on centers is one of a religious hierarchy seeking to control and monopolize a religious teaching.

For example, in the Letter of Understanding Global Connections (GC) discussed its desire to limit the activities of centers to "Osho," but what does that mean? For example, if one of Osho's sannyasins or someone who was inspired by Osho is enlightened, is that included in "Osho"? Are the further insights of Osho's people, "Osho"? Why does OIF or GC have the authority to decide that Osho centers must be limited to "Osho" or to define what "Osho" means?

These kinds of questions are not trademark questions. They don't involve some good or service that originates with OIF. These are questions about the attempt to control and monopolize a religious teaching. Though OIF calls this kind of attempt to interfere in the religious activities of centers "trademark quality control," it clearly is not that. OIF has no quality of goods or services to protect, and it cannot monopolize or control people involved in a religious teaching against their wishes. (See Religious Freedom.)

Fraud

In many places even a valid trademark can be cancelled if the applicant committed fraud by saying something it knew or should have known was untrue or failed to provide the agency involved with information that might have affected the agency's decision. In the case of alleged trademarks for Osho, OIF has to claim that "Osho" is used as a trademark and that OIF owns the trademark and has the exclusive right to use it in the marketplace, but neither of these things is true.

In the US case OIF had told the United States Patent and Trademark Office (USPTO) that it had received an assignment of trademark rights from Osho and referred to Osho as OIF's "predecessor" for trademark rights. It later turned out that OIF had never received an assignment of any trademark rights from Osho. In fact, in spite of constant reference to "predecessors" for trademark rights in the recent litigation, it turned out that OIF had never received an assignment of trademark rights from anyone.

In order to file applications for trademark registrations various representatives of OIF (Pramod, Amrito, etc.) signed sworn statements claiming that no one but OIF had the right to use "Osho" in the US marketplace. They signed these statements, beginning in 1994, when they knew that Osho centers and individuals had been using "Osho" to describe their goods and services since 1989 at Osho's own request. OIF never informed the USPTO of the existence of the US Osho centers and individuals or their activities.

OIF claimed that it reasonably believed that OIF had formed oral licenses with all centers in 1989, so that only OIF gained any rights by the centers' uses. OIF was unable to provide any competent (legally admissible) testimony about this or to produce any document ever referring to an oral license between 1989 and 1998, the years OIF claimed they existed.

For the legal arguments on fraud in the US case see: Trial Brief of Opposer/Petitioner pp. 44–51; Reply Trial Brief of Opposer/Petitioner pp. 20–23.

Religious Freedom

There are laws protecting religious freedom in all the countries and areas where OIF has attempted to claim ownership of trademarks for "Osho." These laws prohibit anyone from monopolizing or controlling religious teachings against the wishes of the people involved.

In past centuries there were state religions and everyone was obligated to belong. Now, in the countries involved here, people have the freedom to choose. No one, for example, can monopolize Christian teachings. An individual can choose to be a Catholic, a Lutheran, a member of the Church of Christ, or hundreds of other choices. Anyone who wants to can start his or her own church or group that interprets the Christian teachings. No one can prevent that, because religious teachings are free to all.

Osho spoke strongly about His right to speak about Jesus, even though He was not a Christian:

Just few days before, from Germany... The Protestant Church of Germany has published a booklet against me in which they say that people can be deceived by my words because I talk about Jesus and I give beautiful interpretations to Jesus' words, but those interpretations are not Christian—as if they have to be Christian, only then can they be right! As if Christians have any copyright over Jesus! Jesus belongs to all! Of course, my interpretation is my interpretation. Who is saying that it is Christian? Even if they say it is Christian, I will deny! It is not Christian—it is my interpretation, it is my vision. But I know Jesus more directly than the Christians know him. They know him through the scriptures, they know him through scholarship.
~ from Zen: The Special Transmission, ch 6, q1

Osho says "Jesus belongs to all," but OIF claims that Osho belongs to OIF. OIF is apparently well aware how indefensible its position is, because it doesn't actually try to argue that OIF has the right to own a religious teaching. Instead it argues that Osho's teachings are not religious.

OIF's first argument on this has to do with the way Osho distinguished between religion and religiousness. Such as:

What I am doing here has nothing to do with religion at all. It is a kind of religiousness—no belief, no dogma, no church. It is a love affair; you cannot be convinced of it. Do you think Majnu can convince others about the beauty of Laila? It is impossible. Nobody can convince anybody else about his love affair. It is far deeper than the intellect, it is of the heart, and the heart knows no arguments, no proofs; it is simply so. One can dance, one can sing, but one cannot prove it. One can shout with joy, one can say "Alleluia!" but those are not arguments, they are not convincing.
~ from Come, Come, Yet Again Come, ch 13 q1


OIF's attorney claimed in the oral argument in the US case that "Osho abhorred religion." She also argued that because OIF sells nonreligious note cards under its Osho "mark," and because some people go to Pune for spa treatments, not meditation, "Osho" is not religious.

In fact, OIF went so far as to claim that Osho's people, of all people on the planet, are the only ones lacking religious freedom. OIF claimed that there was no need for "Osho" to be available for people other than OIF to use, because there were other forms of "mind/body/wellness" that people can use. For example, people can refer to Deepak Chopra. In other words, only OIF can refer to Osho, but sannyasins and Osho lovers who don't want to be controlled by OIF can go find another religious teaching. OIF claims sannyasins who don't want to submit to OIF's control have no rights to use "Osho."

OIF is completely wrong about all of this. OIF can't unilaterally declare that Osho's teachings are not religious. If Osho's teachings are not religious for the members of OIF, that's their freedom to decide, but they can't make that decision for anyone else. Anyone who considers Osho's teachings on meditation and religiousness "religious" in the sense that they play an important role in their lives, then the teachings are religious for them. No one can ever make that decision for any other individual.

Even if OIF was correct in arguing that Osho was not interested in religiousness (which they certainly were not), that still wouldn't prevent the teachings from being religious for some people. Even the teacher cannot control religious teachings once they have been given. The founder of an idea doesn't have to consider him or herself to be a religious teacher in order for his or her teachings to be religious.

For example, an early US President, Thomas Jefferson, wrote a version of the Christian New Testament in which he removed all references to the supernatural and attempted to remove what he thought had been added later to the essential teachings of Jesus. In doing this Jefferson probably did not consider himself to be a religious teacher and most people consider his work to be primarily political and philosophical, instead of religious. Nevertheless, if anyone believes that Jefferson's interpretation of the New Testament correctly identifies the essence of Christian teaching and lives his or her life according to Jefferson's writings, then Jefferson is a religious teacher for that person and his writings are religious teachings.

Religiousness is a personal, individual thing, and each individual has the right to choose what religious teachings to accept, how to interpret them, and whether to choose organized religion or religiousness. Organized religions can exist and they can even exercise religious authority. However, they can only exercise religious authority over those who voluntarily submit to their authority. No religion can ever exert religious authority over anyone who has not freely chosen to submit to that religious authority. Further, anyone who has submitted to a religious authority can always choose to opt out and leave the religion.

This means that no one, not OIF, and not anyone else, can ever control or monopolize the activity of people who are interested in, working with, interpreting, or living by the teachings of Osho. This kind of control can never happen. Catholics can't force Methodists to accept the Catholic Church's interpretation of Christian teachings. Orthodox Jews can't force Reformed Jews to accept Orthodox control. Sunni Muslims can't control Shiite Muslims. Theravada Buddhists can't stop Pure Land Buddhists from chanting the name of Amida. OIF can't stop Osho lovers from interpreting His teachings in as many and as varied ways as they like.

Because no religious teaching can ever be controlled, all efforts to impose a "trademark" which is really a form of religious control or monopoly is a complete waste of resources that could be used, instead, to promote and spread Osho's work.

For the legal arguments in the US case see: Trial Brief of Opposer/Petitioner pp. 52–53; Reply Trial Brief of Opposer/Petitioner pp. 13–15.