A look at how Facebook’s policy discriminates against people connected to Osho because of claims made by OIF.
Osho International Foundation, Zurich (OIF) has claimed “Osho” as its own exclusive trademark in several countries around the world. In 2008 the US Trademark Trial and Appeal Board ruled that “Osho” cannot be a trademark in the US. In India, Osho International Foundation Pune, a completely separate Indian legal entity, claimed ownership of “Osho” as a trademark, but the claim was opposed and no registration or ruling has ever taken place. In 2010 Osho Lotus Commune in Cologne filed a case in the EU to invalidate a trademark for “Osho” that OIF registered in 1999.
Nonetheless, OIF continues to claim that no one can use the name Osho to indicate an association with Osho the person in work that is related to Osho’s spiritual teachings unless OIF gives them permission. At some point after losing the US case, OIF went out and registered trademarks in new jurisdictions like China and Venezuela, where there are not enough sannyasins to oppose the registrations. Based on these filings they claim to own an “international” trademark for Osho.
OIF now argues that no one can use Osho’s name descriptively in a business name on the Internet, because the Internet goes to the whole world, and OIF has Osho registered as a trademark in some jurisdictions.
In the EU case over 30 center leaders, therapists, and others involved with Osho’s work testified that they had used Osho’s name to describe his connection to their work, programs, and processes since 1989 or soon after. OIF did not register a trademark for those services till 1999 and did not begin attempting to license that mark until 2009, after losing in the US.
In retaliation, Klaus Steeg (Pramod) has filed complaints with Facebook on behalf of OIF against every person with a page containing the name Osho who testified in the EU case, and Facebook has taken down those pages. In one case Facebook even took down the personal page of a center’s web person.
Facebook’s terms, which appear on its website, state that Facebook will not adjudicate between parties in an intellectual property dispute. US law requires Facebook to allow people accused of copyright violations to object to the copyright claim, and if the accused responds and the claimant does not file an enforcement lawsuit within a specified time, the page must be put back up.
In contrast, if a claimant to trademark ownership fills out a scanty online form that could not possibly give enough information to actually determine the sufficiency of a trademark claim, Facebook will take down the page, will not allow the accused to respond, and will not put the page back up unless the claimant agrees to it.
In doing this, Facebook is deciding that the trademark claimant has a valid claim to a trademark, though there are many possible defenses to a trademark claim, such as that the mark is invalid (as the US has decided with “Osho”), that the registration was fraudulent, that there is no trademark where the accused is based, that the accused has priority in using the alleged mark, and that the word is the name of the historical person and being used as a name, not as a trademark (which is the case with all the pages that have been taken down).
All jurisdictions have a process for trademark claimants to bring actions for infringement, and the accused is always allowed to present a defense. None require the accused to bring an action to prove non-infringement, but Facebook has now created that situation. Rather than requiring the trademark claimant to file the infringement action in the appropriate legal jurisdiction, as a copyright claimant must do, the accused in a trademark case is excluded from Facebook until it files a legal action against the claimant in the jurisdiction where it is incorporated or against Facebook in the US. In this case, people accused of infringement by OIF may need to go to Switzerland to bring an action against OIF.
The result of this Facebook policy is discrimination against people connected to Osho as a spiritual teacher, who want to use his name to describe their work or to talk about his work on a Facebook page. Osho the person can be mentioned in page content, but people may not mention Osho in the page title – in the place that will attract people interested in Osho – or Facebook may take down the page. In other words, people associated with Osho cannot use Facebook to discuss or spread the teachings of their spiritual leader in the way all other religious groups can. Both “Jesus” and “Buddha” are trademarks in the US for specific products, but Facebook would not take down all pages with these names in the title. For example, Facebook would not take down a page for the First Church of Jesus Christ, because they would acknowledge that “Jesus” in the church name is a reference to the historical person, not a trademark use. They would not take down a page titled Buddha Sanctuary, as they would recognize this as a reference to the historical Buddha.
Yet Facebook treats Osho differently. For Facebook Osho is not a person with a name, and people associated with Osho are not allowed to refer to Him in their page names. For Facebook, Osho is only a trademark. Facebook is aware of this situation and the effect of its practices on lovers of Osho but has refused to comment on its policy or to change it.
The result has been remarkable. One of the pages Facebook took down was Osho Pulsation, which is located in California, where the law is clear that there is no Osho trademark. Other pages taken down were for Osho Uta Institut, Osho Times, and Osho Diamond Breath. All of these used the name Osho in connection to their businesses before OIF filed for relevant marks. Under EU law OIF cannot enforce a later mark against them, even if a mark for “Osho” should turn out to be valid. Over the last year or so other pages have been taken down, including those of Swami Rajneesh, now known as Ozen Rajneesh, whose activities have taken place in India and Mexico, where OIF, Zurich, has never had a trademark claim.
Those who testified in the EU trademark case are not the only ones affected. Ursula Hoess (Vatayana) has written to other owners of Facebook pages that contain Osho’s name, telling them they must “acknowledge” OIF’s ownership of trademarks for “Osho” or their pages will be taken down. (Of course, no one can “acknowledge” ownership of a trademark. That is always up to the relevant legal jurisdiction to decide.) Phillip Toelkes (Niren) has written letters threatening legal action against Osho Uta Institut and Osho Diamond Breath and to a long-time therapist to tell her she may no longer describe herself as an “Osho therapist.” That was a blast from the past, since few, if any, therapists refer to themselves that way these days anyway. Interestingly, most of Niren’s letters have been written to people in Europe, and he has ignored the fact that he is not licensed to practice law there.