Islamic Law and Trademark Protection

Abstract

Protection of trademark in Islamic Law is covered under verses of the Holy Quran and traditions of Prophet Muhammad ﷺ. Trademark is one of the component of Intellectual Property Law, which is protected under Islamic Law. Islamic law are those teachings which were revealed on the last prophet Muhammad ﷺ, for the betterment of human beings in both worlds. Islamic Law protects rights of an individual whether they are material like property rights or immaterial like Intellectual Property rights. Protection of wealth is one of the Maqasid-ul-Sharia, which is the public right and are fully preserved under an Islamic Law. Almighty Allah says in the Holy Quran that “Do not eat the property of another with unlawful means except with a valid agreement, solemnized with a valid consent from both sides”. Prophet Muhammad ﷺ said that he who copies another’s work is not one of us. Prophet Muhammad ﷺ went to Syria as a trader with the wealth of his preceding wife Hazrat Khadija RA. Imam Abu Hanifa and Imam Bukhari used to work as traders besides their exceptional works in Fiqh and Hadith. All types of trade and investment activities are valid, legal and protected under Islamic Law unless clearly prohibited by Almighty Allah in the Holy Quran or by Prophet Muhammad ﷺ in the Sunnah. The transaction must be clear from Riba/Interest; which is an excess that has no corresponding consideration in exchange of property for property. The subject matter of the transaction must not be uncertain, and the purpose of the transaction and the activities governed under the contract must be legal under the light of the Holy Quran and Sunnah of Prophet Muhammad ﷺ. Intellectual Property is protected under Islamic Law, which is that area of law, which concerns legal rights, associated with creative efforts, commercial reputation and good will. Intellectual Property Law includes patent for the protection of inventions, copyright for the protection of literary and artistic works and trademark for the protection of marks, signs, words and trade names, which distinguishes goods and services of one undertaking from goods and services of other undertakings, which must be distinctive and non-descriptive because an undescriptive trademark is a unique trademark which is easy to be registered and adhered by the public at large. The purpose of trademark is to provide an opportunity to the public to distinguish goods and services of one undertaking from goods and services of other undertakings and to adhere the source of goods and services. Trademark is protected under Islamic Law, but it does not allow the right holder to held illegal activities under a legal trademark. The trademark which is protected under Islamic Law is that trademark which is used for the promotion of legitimate goods and services.

Meta-Mortgaging: Islamic Law Review on Marhūn Issues

“…As we see that currently the development of assets that can be guaranteed or can become marhūn are not exclusively limited to objects that are physical in nature, but also that are immaterial in nature. As an example is intellectual property rights that are not materially tangible (Bashir & Khan, 2016;Mashdurohatun et al, 2021;Mukhtar, Zainol, & Jusoh, 2018). Even then, this intangible type remains a matter of debate, as is the debate over what is a property in the previous paragraph.…”