Can a trademark really “dirty the image” of a saint?

The former head of the Vatican’s Congregation for Saints, Portuguese Cardinal José Saraiva Martins, is quoted in the Italian magazine Panorama saying that the recent decision by the Missionaries of Charity to trademark the blue and white sari made famous by Mother Teresa is a “questionable and inappropriate business initiative.”

The sari is white with one large blue stripe, and two smaller blue stripes. It was designed by Mother Teresa in 1948, and serves as the habit for the order.

Biswajit Sarkar, the lawyer for the order of religious sisters, applied for the trademark in 2013, and it was granted last year.

However, the Missionaries of Charity didn’t reveal the Indian government’s decision during the celebrations surrounding their founder’s canonization on September 4, 2016.

“The Missionaries of Charity does not believe in publicity and as such it was not publicized,” Sarkar said. The lawyer said there is “unscrupulous and unfair usage of the design across the globe.”

Saraiva Martins said, “Saint Mother Teresa of Calcutta is a universal symbol, loved by believers, non-believers, and followers of other faiths,” adding it was “absurd to pay a tax” on the order’s distinctive habit.

The cardinal oversaw the Vatican’s office for saints when Mother Teresa was beatified in 2003.

He said the move “dirtied the image” of the saint.

The case is believed to be the first time a religious order has protected its habit as intellectual property, although the actual details of the case may mean the protection is rather limited.

Trademarks, unlike copyrights, generally must be sought in each individual nation, and so far, trademark protection has only been granted in India. It is unclear if the sari would even meet the requirements for trademark protection in other countries.

This hasn’t stopped the Missionaries of Charity from trying to claim such ownership of what it called the “patrimony of its order,” which includes “Mother Teresa’s life, works, words, name, image.”

Some might accuse Saraiva Martins of being selective in his protests: After all, it is not the first time the Church has tried to use forms of intellectual property to stake ownership claims.

On February 22, the Vatican’s Secretariat of State issued a statement saying one of its tasks was “that of protecting the image of the Holy Father, so that his message can reach the faithful intact and that his person not be exploited.”

The statement said the Vatican would protect “the symbols and coats of arms of the Holy See” through appropriate channels on an international level.

It went on to say the Vatican would begin carrying out “systematic surveillance activities apt to monitor the ways in which the image of the Holy Father and the coats of arms of the Holy See are used,” intervening with “appropriate action” when needed to “halt situations of illegality that arise.”

Cynics might note the statement came out shortly after posters featuring Pope Francis were plastered around Rome, complaining about the way he was running the Church.

However, this year’s warning was not the first time such a statement has been issued.

In 2009, the Vatican issued a statement noting that the “great increase of affection and esteem for the person of the Holy Father” had caused “a desire to use the Pope’s name in the title of universities, schools or cultural institutions, as well as associations, foundations and other groups.”

This statement, coming out when Benedict XVI was still pope, continued:

“In light of this fact, the Holy See hereby declares that it alone has the right to ensure the respect due to the Successors of Peter, and, therefore, to protect the figure and personal identity of the Pope from the unauthorized use of his name and/or the papal coat of arms for ends and activities which have little or nothing to do with the Catholic Church.”

The Vatican’s legal reach in the matter, though, is absolute only in the 110 acres of the Vatican City State. It can’t write laws, or interpret them, for other countries.

Although the Vatican’s ownership of the pope’s writings is generally recognized throughout the world based on various international agreements covering copyright protection, image rights are not so simple.

(The Vatican is vigorous in protecting its copyright. It has sent cease-and-desist letters to people who – for free – reformatted papal documents available on the Vatican website into more easily accessible digital versions.)

Usually, “publicity rights” of a public figure like the pope are governed by an intersection of trademark and privacy laws, which vary from country to country, or even –such as in the United States – state to state.

It can be very confusing, and always has been. Mark Twain once said, “Only one thing is impossible for God: to find any sense in any copyright law on the planet.”

The Vatican’s rights are easier to protect in cases where an organization is passing itself off as officially endorsed by the pope or the Vatican. After all, these cases are often covered by various fraud and “passing off” laws (which keep you from trying to pretend to be a different company).

But posters complaining about a papal policy featuring an image of the pope? Many places, this would be considered satire and allowed.

The real question comes with the pope bobbleheads and funny T-shirts which flood Rome, and any place the pope visits, or the kitsch which fills Catholic bookshops and street markets around the world.

It is understandable for the Church institutions – from the palaces of the Vatican to the slums where the Missionaries of Charity serve – to be concerned with people making a profit off their image.

But often, these trinkets are being sold by the poor themselves, and everyone else usually just sees it as a bit of harmless fun. Sending the lawyers might seem overkill, especially since popes and saints have adorned banners, flags, medals, and other paraphernalia for centuries.

Legal protections have an expiration date, meaning they are for the most part a 20th and 21st century issue. Which leads to some awkward realities.

The Missionaries of Charity can claim legal ownership over Mother Teresa, but the Franciscans and Dominicans can stake no claim on their founders, and have to grin and bear it if you sell a ‘St. Francis talking to the animals’ coffee mug, or ‘St. Dominic preaching to the Albigenses’ commemorative plate. The Vatican can stop you from publishing Laudato si, but the encyclicals of Leo XIII are in the public domain. You can mass produce a poster featuring Saint Ignatius Loyola, but you better check with a lawyer before printing one of Saint Maximilian Kolbe.

Maybe Saraiva Martins is right, and it is “absurd to pay a tax” on what belongs to the entire Church.