The Ever-Changing Story
The Ever-Changing Story
To own a trademark and the right to register and license that trademark, the trademark claimant must already own the exclusive right to use the term in question as a trademark. OIF’s story as to why it claimed to own that exclusive right in 1989 has changed dramatically over the years.
1999
In its applications for registration before the US Patent and Trademark Office (USPTO), OIF claimed that Osho had used His name as a trademark and that Osho was OIF’s “predecessor in interest” for those rights, which means that Osho had assigned rights to OIF. OIF made these statements with regard to the following applications:
75-683094
Gourishankar Meditation; and
75-683091
Nataraj Meditation
April 15, 1999 Office Action Responses from Mary Luria
“The meditation was created by Applicant’s predecessor-in-interest and identified with the mark with which it has been associated for over 20 years. It is used only by Applicant, its affiliates and licensees or third parties referring to one of the foregoing. Examiner has found and cited no third party uses.”
75-683097
Osho
April 15, 1999, and
75-683095
Dynamic Meditation
July 30, 1999 Office Action Responses from Mary Luria.
“Applicant is the owner of all copyrights in the writings and oral teachings of the mystic Bhagwan Shree Rajneesh who adopted the mark OSHO for his religious, philosophical and scientific teachings, including those he identified by the mark Dynamic Meditation which is the subject of this Application.”
2001
On June 7, 2001 Anando [Susan Hafley] signed a declaration saying that Osho asked for his name, “Bhagwan,” be used as a trademark and that she was involved in passing this information on. [In fact, no trademark applications were ever filed for “Bhagwan,” and no trademark applications were filed at all during Pune II, when Anando was acting as Osho’s secretary.]
Anando went on to testify that Osho gave directions through her when He changed His name in 1989, though she characterized Osho’s name change as “re-branding.” Anando also attached a copy of the Osho Times where Osho asked all centers to use “Osho” in their names to her declaration. She was very clear that she was operating on Osho’s instructions throughout the name change.
2002
Pramod [Klaus Steeg] was deposed on November 21, 2002. Pramod testified that Osho had asked people to start centers and to use His name for their activities. [p. 99]
When asked specifically about OIF’s claim that it had received trademark rights by assignment from Osho, Pramod made it clear that this was not really the case:
Pramod testified that:
A. The foundation in Zurich was under license for using OSHO’s name to promote his work.
Q. Who was the licensor?
A. OSHO assigned his name to the foundation.
Q. Which foundation?
A. The original foundation.
Q. The original Indian Foundation?
A. Yes.
Q. Is there a writing in which he assigned the name OSHO to the Indian Foundation?
A. No.
Q. Is there any writing in which the Indian Foundation licensed Zurich Foundation to use the name OSHO?
A. No. [p. 114]
Pramod went on to testify that Osho has used His name “Rajneesh” as a trademark and then in 1989 Osho adopted “Osho” as a “source identifier” of all His work. Osho Himself gave instructions that all the work connected to His should use “Osho.” [pp. 147–148]
When pressed, Pramod admitted the following:
Q. There was no written license between OSHO the man and the Foundation Zurich, correct?
A. Correct.
Q. So there was no indication in writing at least that OSHO the man considered this a trademark that was being license by him in writing?
MS. EDELMAN: Objection to form.
A. I don’t know how to answer that.
Q. You are not aware of any writings that OSHO the man said OSHO was to be treated as a trademark?
A. No. [pp. 148–149]
When asked why OIF claimed to own exclusive rights to use “Osho,” Pramod replied:
A. I mean the mark itself and the name, the name and the mark is based on an assignment of the name and his image.
Q. Is that assignment in writing?
A. That assignment is in writing.
…
Q. Is there a specific paper that uses the word OSHO and transfers the term OSHO apart from the man OSHO?
A. No. [p. 150]
2003
The following year Yogendra [D’Arcy O’Byrne], another board member of OIF, was deposed and he testified that Osho had personally created trademarks using His name, such as Osho Zen Tarot, Dynamic Meditation, and so on. [pp. 22–23] He also testified that Osho“instructed that everything be changed from Rajneesh to Osho “including all meditations, all the groups, all the programs in the multiversity, the letterhead, everything was changed from Rajneesh to Osho.” [p. 27]
But when pressed about Osho’s use of “Osho” as a trademark, Yogendra said that he didn’t know if Osho asked for “Osho” to be used as a trademark [though OIF now claims Osho authorized the use as a trademark]:
Q. And when he directed that the term “Osho: be used in all these ways, did—did he also direct that there be registrations in any government entity for the protection of the name as a trademark?
A. I don’t know.
Q. If you wanted to find that answer, who would you consult with?
A. I’m sorry, I don’t know.
Q. And do you know whether Osho, the man, took any steps to limit or qualify the use of the word “Osho” with regard to, you know, third-parties?
A. No, I don’t know.
Q. Do you know whether he instructed anyone to license the use of that term?
A. No, I don’t know.
Q. And if you wanted to investigate whether Osho, the man made any such assignments, where would you go to find that information?
A. I’m afraid I don’t know.
…
Q. And you, personally, have never seen any written assignment from Osho, the man, dealing with any name or mark that contained the word “Osho,” correct?
A. No, I haven’t.
Yogendra was also adamant that there was no organization around Osho’s work:
“Well, I don’t think anybody with a brain accepts instructions from Osho or anybody else, so I don’t agree with that for sure… I don’t think Osho would accept any kind of association with him at all. Association is to yourself and that’s what he described throughout his body of work.
…
“I think what happens is you’re looking for some kind of organization, and there is no organization. It looks like an organization, but actually it’s fundamentally a group of individuals and everybody is on their own…” [pp. 35–36]
Yogendra went on to testify that all the centers changed their names to Osho when Osho asked them to. He said that centers used Osho’s name through permission from him. [pp. 37–38]
2004
After OIF’s own board members had admitted that OIF had no assignment of rights in “Osho” from Osho himself, OIF knew that its original story that Osho had “re-branded” his work from Rajneesh to Osho would cause them to lose the case. If Osho used His name as a trademark and then “re-branded,” but never assigned anything to OIF, then OIF clearly didn’t own the trademarks. OIF would have had no rights to use “Osho” superior to all the others who have used it since 1989.
When a Motion for Summary Judgment was brought by Osho Friends, partly on these grounds, OIF completely changed its story and swore that it had never told any other version. Its new story was that OIF had never claimed to have received an assignment of Osho’s name. It had received an assignment of copyrights and used those copyrights to gain trademark rights. OIF said:
“Osho never owned, or professed to own any OSHO marks, and therefore Osho never could have legally conveyed any rights in the Osho marks to OIF or anyone else.”
2007
By the time Pramod was ready to testify in the trial of the US case, OIF had worked out the details of its new story. Pramod testified that Osho had never controlled the use of His name, contradicting his own earlier testimony, as well as the testimony of Anando and Yogenedra. Pramod claimed that OIF, not Osho, had directed the “re-branding” from Rajneesh to Osho and that not a single center received permission from Osho to use the new name “Osho.” Pramod claimed that OIF, through Global Connections had given permission. All of this testimony contradicted the earlier testimony of Anando, Pramod, and Yogendra.
Pramod also claimed that Osho had authorized an organization to control all His work since the 1970s, contradicting Yogendra’s earlier testimony that there was no such organization.
In the end the US Trademark Board never reached the question of OIF’s ownership of “Osho” trademarks, since it found that there was no “Osho” trademark to begin with, just a generic term to describe Osho’s work and the movement around it. If this issue is ever litigated again somewhere else, it’s good to realize that OIF second version of the story isn’t any better than the first. If OIF only got rights in “Osho” by using the copyrights, while hundreds of centers and individuals were also using “Osho” for their own goods and services, OIF could never own exclusive rights in “Osho.”