THE SALE OF TRADE MARKS, TRADE NAMES AND THE FRANCHISE SALES

Trade Marks



In their attempt to legalize the sale of trade marks and trade names, the liberal Molwis contend: “In the present age, among the questions pertaining to commerce, the most important issue is the buying and selling of trade names and trade marks. These kinds of trade marks are registered by the government. These trade marks have become valuable things to traders. They buy and sell these trade marks and trade names. Is this buying and selling permissible?”



Answering his question, the copyright Molwi says: “Since a trade name or trade mark is not a tangible object, but is a haqq-e-mujarrad (an abstract right), it is beyond the definition of maal (tangible assets) which has been presented by Allaamah Shaami and others, hence its sale is not permissible. But, in the discussion on maal, I have preferred the definition of the Author of Badaai’, and besides the Ahnaaf, of the other Jamhur Fuqaha. Their definition takes precedence.



In terms of this definition (of Badaai’ and the other Fuqaha of the other Math-habs), the definition of maal will also apply to trade marks because in reality benefit is derived from this right (trade mark). And, this is also permissible according to the Shariah. Furthermore, in the urf (prevalent practice and custom) it is considered to be maal (tradable commodity) hence it is being sold and bought. Thus, its sale is permissible.”



The contention that wheeling and dealing in trade names are today the most important commercial issue among all the issues of trade and commerce, is to say the least, amusing. Anyone who is cognizant of the commercial scenario, will know that the claim made by the Molwi Saheb is grossly exaggerated. The issue of trade name is not the most important of all commercial issues.



In this averment, the Molwi Saheb has in entirety set aside or discarded the Hanafi standpoint which Allaamah Shaami and the other Hanafi Fuqaha have spelt out very clearly and which the copyright Molwi concedes. The clarity of the Hanafi view on the sale of even valid huqooq, has driven the copyright Molwi to concede that according to the Hanafi Math-hab, trade mark is not a tradable commodity in view of the fact that it is not a tangible item. He has been constrained to cite the Hanafi viewpoint as stated by Allaamah Shaami.

However, since the Molwi Saheb had mentioned in the beginning of his paper which he had submitted to the Fiqh Academy, that he shall confine his discussion within the parameters of the Hanafi Math-hab, he had no alternative but to sustain this impression inspite of him having transgressed the bounds of the Math-hab which he purports to be a muqallid of. From the innumerable kutub of the Ahnaaf Fuqaha, he could manage only to cite from one kitaab, viz. Badaai-us-Sanaai’, in his endeavour to prove that trade mark is tradable commodity (maal) even according to the Hanafi Math-hab. Badaai-us Sanaai’ is one of the most authoritative Books of the Hanafi Math-hab. Its author is the illustrious Allaamah Kaasaani

(rahmatullah alayh). In his mind, the copyright Molwi believes that Allaamah Kaasaani has also upheld the notion of abstract entities being maal. But this notion is utterly baseless. Badaai-us Sanaai’ makes in abundantly clear that the definition of maal and the views of Allaamah Kaasaani on this issue are in perfect consonance with the concept and rulings of the Hanafi Fuqaha, right from Imaam Abu Hanafi (rahmatullah alayh).



The copyright Molwi has distorted and misinterpreted the definition of maal given by Allaamah Kaasaani in Badaai-us Sanaai’. He quotes the following extract from Badaai-us Sanaai’:

“And our proof (for the permissibility of selling dogs) is that a dog is maal, hence it is a substratum for sale such as a falcon and a hawk. The daleel for it being maal is that benefit can actually be derived from it-- such benefit which is permissible according to the Shariah. Hence it is maal. The proof that deriving benefit from it according to the Shariah is permissible, is that it is used for guarding property and hunting.” Commenting on this, the copyright Molwi says: “In Badaaius Sanaai’, Allaamah Kaasaani narrated a number of examples from which it is clear that if something is beneficial according to the Shariah, then it is maal, and its sale is permissible. And, if according to the Shariah, deriving benefit from it is not permissible, then it is not maal.”

From Allaamah Kaasaani’s definition of Bay’ (Sale), the copyright Molwi has concluded that maal is anything in which there is lawful benefit, be it tangible or intangible—physical or an abstract entity such as a right. The manner in which he presents Allaamah Kaasaani’s definition, conveys the impression that according to the illustrious author of Badaaius Sanaai’ even abstract rights and benefits (intangible things) are maal. But this conclusion is baseless. Allaamah Kaasaani no where even alludes to this idea.



The copyright Molwi has extracted the term intifaa’ (to derive benefit) from the definition, and fixed it as the determinant or criterion for maal. Hence, anything in which there is benefit is maal. On the basis of this conclusion, the manfa-at (benefit) of occupying a building is maal. The benefit of riding in a vehicle, the benefit of a hired machine, the benefit derived from a permit and many similar rights are all maal. Since there is monetary benefit for the author in copyright, hence it is automatically maal (tradable commodity) in the opinion of the copyright Molwi.



In formulating this theory on the basis of intifaa’ (deriving benefit), he has contradicted Allaamah Kaasaani who does not define maal as just anything, be it an abstract right, merely on account of the attribute of intifaa’. In Kitaabul Buyoo’ of Badaaius Sanaai’, Allaamah Kaasaani gives many examples of a variety of sales. Abstract rights do not form the subject of sale in even one of the numerous examples the Allaamah presented. Every example is a sale in which a physical item is being sold. Not a single sale of the numerous examples mentioned by Alaamah Kaasaani pertains to manfa’at (benefit).



Allaamah Kaasaani is in harmony with all the Fuqaha of the Hanafi Math-hab in the definition of maal. On page 140 of Badaaius Sanaai’, Vol.5, he states: (A condition for the validity of bay’—sale) is that the subject of the bay’ should be maal because, Bay’ is the exchange of maal with maal.” All the Hanafi Fuqaha define maal as physical objects, not abstract rights and benefits.



The condition of intifaa’ which Allaamah Kaasaani as well as the other Fuqaha-e-Ahnaaf stipulate pertains to benefit of tangible objects. The condition is not mentioned in the context of manaafi’ or huqooq. Allaamah Kaasaani and all the Hanafi Fuqaha make a very clear distinction between manfa-at and maal. Inspite of a house having the benefit of living therein, the Fuqaha, including Allaamah Kaasaani, do not assign this intifaa’ to the category of Bay’. They clearly define it as Ijaarah (Leasing) in which the subject on which the agreement is transacted is called manfa-at, not maal.



No where in the kutub of the Ahnaaf, including Badaaius Sanaai’ will it be found that huqooq and manaafi’ (rights and benefits) have been described as maal. The Hanafi Fuqaha unanimously describe maal as tangible commodity – material or physical things which can be stored for future use. Along with the attribute of Intifaa’ (derivation of benefit), the Hanafi Fuqaha, including Allaamah Kaasaani, stipulate Id- dikhaar (storing for future need) as an imperative condition for maal. No one, not even the copyright Molwis, can deny the irrefutable reality of maal being material commodities according to the Hanafi Math-hab, hence, the Molwi Saheb, begrudgingly concedes:

“Hadhrat Allaamah Shaami, citing from Al-Bahr, defines maal as ‘something to which the natural disposition inclines and it can be stored for a time of need. After presenting this definition, Hadhrat Allaamah Shaami, citing Talweeh, excludes manfa-at from maal. Hence he wrote: ‘Manfa-at (benefit) is mielk (i.e. being a person’s property- in one’s ownership). It is not maal.”



Commenting on this definition on which there is consensus of the Hanafi Fuqaha, the copyright Molwi, once again grudgingly concedes: “On the basis of this definition, many things are excluded from maal whereas people consider these things maal and trade in them, e.g. vegetables are maal (but in terms of this definition it is not maal). During the era of the Fuqaha, vegetables were commodities in which people traded. No one has ever claimed that buying and selling vegetables are not permissible, inspite of the fact that vegetables cannot be stored for a time of need (as the definition demands), even though in this age of technological progress, vegetables can be preserved temporarily in cold storages for a few days. But in the olden days its preservation was not possible.



Similarly, bitter medicine is something to which the natural disposition does not incline, inspite of it being accepted as maal. In the same way, while many things are not maal, they are included in the definition of maal, e.g. liquor. The natural disposition inclines to it and it can be preserved for later use. But inspite of this, it is not termed maal. For this reason the aforementioned definition of maal (given by the Fuqaha of the Hanafi Math-hab) is not correct according to me.” Before we proceed to demolish this ludicrous trash which the copyright Molwi has gorged out, it is necessary to say that if this Molwi Saheb is downright stupid, the Fuqaha were not. His arrogance and puffed up pride on account of his smattering of ‘knowledge’—book knowledge—is akin to the knowledge which shaitaan possessed and which he used to impart to even the Malaaikah in bygone times when he was dwelling in the lofty heavenly realms.



This Molwi Saheb is here shamelessly claiming that all the Hanafi Fuqahaa from Imaam Abu Hanifah (rahmatullah alayh) right down to the present century, among whom were innumerable illustrious Stars of Islamic Uloom, the likes of whom the world will never again see, have adhered to an incorrect definition of maal while he has stumbled on the correct concept and definition of maal. For 14 centuries, all the Hanafi Fuqaha and Ulama were dwelling in the darkness of error while this Molwi in this belated age with his superficial outward veneer of textual glimpses has discovered the fourteen century-old Hanafi error and has now accomplished the feat of correcting an error which all the Hanafi Fuqaha and Ulama of the past centuries, including Imaam Abu Hanifah (rahmatullah alayh), were blissfully unaware of. May Allah Ta’ala save us from such Talbees-e-Iblees (confusion and deception of Iblees). Let us set aside this emotional digression and return to a factual demolition of the stupidities uttered by the copyright Molwi.



First stupidity



Vegetables are maal inspite of the inapplicability of the Hanafi definition of maal to it. His assertion is that technically it is not maal because it does not satisfy the condition of id-dikhaar

(preservation/storing) for a time of need. While vegetables can be stored for a ‘few days’ in freezers and cold storages due to technology in the present age, it was impossible to preserve vegetables in the olden days. It truly embarrasses us to descend to this low ebb to answer and refute a contention which any layman who is bereft of Shar’i Uloom is able to accomplish.

Vegetables, fruit, meat, etc. can today be preserved for years by a variety of processes. One need simply look at the expiry dates printed on labels of canned and frozen foods. Where did the Molwi gain the idea of the limit of a ‘few days’ in this age, is a mystery which only he can unravel. His claim that preservation of vegetables in the olden days was

‘impossible’, is plain bunkum which is not expected of a man of Ilm. Vegetables, meat, fish, etc. were preserved for months and even years in even the olden days, also by different processes, e.g. drying, salting, sweetening, addition of certain substances. We are sure that the Molwi Saheb is aware of homemade pickles and the like which his mother and grandmother preserved for more than a year in jars without the aid of modern technology.



In the event of the Molwi Saheb being unaware of the preservation techniques adopted by his grandmother, we are constrained to refer him to the ‘fatwas’ of the western capitalists for whose views he displays an inordinate penchant. Encyclopaedia International, Vol. 7, page 246, discussing food preservation states: “Early man was bound to his food supply and had to move with it according to the seasons. He had little independence from the supply because without it he starved. Until he learned to preserve certain items from time of plenty through time of need, he was unable to move in localities that could not satisfy all his food needs. He learned to sun and air dry grains to preserve them against molding and insect damage. An outstanding example of this was long-term storage of grains in ancient Egypt. Primitive man learned to sun-dry fruits and vegetables and to dry and smoke meat over a fire. He learned to preserve fruit products by fermenting them into wines and vinegars; he fermented milk into curds and cheeses and preserved certain vegetables by lactic acid and fermentations. Gradually, over centuries, these food preservation methods were perfected through trial and error until they became standardized procedures.”



There is much more information which the copyright Molwi can glean from the books of the western capitalists whose causes and concepts he so ardently espouses, even to the extent of refuting the viability and correctness of the arguments, principles, definitions and spirit of the fourteen century Shariah so beautifully structured by the Hanafi Fuqaha on the foundations of the Qur’aan and Ahaadith. And, all this leaning over backwards to the degree of tilting over, is in the pursuit of finding Shar’i sanction for the reprehensible, selfish, monopolistic, unjust and unfair economic riba practices of a people in whose minds their destiny’s limitation is this ephemeral existence, and nothing beyond its confines.

This is indeed too silly an argument to rebut intelligently. An emotional dismissal of this stupidity is more than adequate. Encyclopaedia dissertations and ingenuity are not necessary requirements to understand the meaning of the condition of id-dikhaar (to preserve) which the Fuqaha have stipulated in the definition of maal. The act of ‘preservation’ or being able to store for need, is not conditioned with any time limit. Every item of maal has its own life of preservation. The id-dikhaar attributes of the vast multitude of physical objects described as maal, have their own points, degrees and limits of id-dikhaar, just as different liquids have their own respective boiling and freezing points.



Even the different kinds of vegetables have different life spans. While a tomato will remain in good state for weeks from the time it is picked, a potato lasts for months. If the life span of vegetables is shorter than the lifespan of rice and grain in general which can last for years without any chemical treatment, and if grain has a shorter lifespan than timber, it does not follow that ‘preservation’ of vegetables, etc. was ‘not possible’ in the olden days. Whether a tangible object has a lifespan of an hour, a day, a week, a month, a year or decades, they all enjoy in common the attribute of id-dikhaar which is a relative characteristic with regard to the vast number of objects in Allah’s creation.



A person buys a loaf of bread and its attribute of id-dikhaar enables him to utilize it in his time of need (when he is hungry), for which purpose he has acquired it. The same explanation applies to all other things he procures for his sojourn here on earth. Allah Ta’ala has given each item of maal its own property of id-dikhaar which differs in time limit and degree from that of other items and products. It is, therefore, plain stupidity to deny the glaringly obvious truth that vegetables in the olden days, besides having their own natural property of id-dikhaar, which varies from days to months, could be and were in actual fact preserved for years by artificial methods of preservation. Thus, this ridiculous argument of the copyright Molwi is devoid of any sensible substance, leave alone Shar’i substance.



Since id-dikhaar for the imagined ‘many things’ without id-dikhaar, do exist in all these products, they come fully within the purview of the definition which the illustrious Fuqaha, including Allaamah Kaasaani, have coined for maal.



The Second Stupidity



In the attempt to negate the Hanafi definition of maal, the supposedly Hanafi copyright Molwi claims that bitter medicine, inspite of being acknowledged as maal, the natural disposition (tabiyat) of man does not incline to it. Hence, the definition of maal is not applicable to it although it is maal. His exercise is a despicable attempt to illustrate the

‘flaw’ of the Hanafi definition of maal. One of the attributes of maal according to the Hanafi Math-hab is that the tabiyat should incline to it. What the Molwi is trying to convey is that since the tabiyat does not incline to bitter medicine, the Hanafi definition is neutralized because bitter medicine is regarded as maal without any difference of opinion.

It is quite apparent that the Molwi Saheb has not understood the meaning of inclination of tabiyat (disposition). If a person is not inclined to bitter medicine, what constrains him to take it? Inclination in the context of the technical definition of maal does not necessarily mean lustful or instinctive desire. The inclination in this context refers to both aqli (intellectual) and tab’i (natural) dictates. Insaan (the human being) is not a beast of the jungle which operates purely by instinct. Insaan is distinguished with Aql (an intelligent mind).



The Mu’min insaan’s inclination is regulated by his intelligence as well as by the Shariah and by his instincts. Whether he inclines to something by virtue of his natural instinct, natural intellect or the demand of the Shariah, it will be entirely correct to say that he has inclined to the thing. The Hanafi definition of maal does not restrict inclination to man’s instinct.

The fact that he pays considerable money for the bitter medicine and that he takes it voluntarily and with satisfaction, testifies for the presence of mailaan (inclination) even if the inclination is not instinctive. Bitterness, sourness and saltlessness do not negate inclination. The attribute of inclination differs considerably in different people. For some people cheese is a delicious food item, while to others it tastes like soap. Some people simply cannot eat bitter karelah. For others it is a delicious dish. Some people have a natural aversion for intensely sweet things such as honey, while others relish in it. Some people incline to chicken while others again abhor chicken flesh. The list of different and divergent inclinations is formidable. But the fact remains that every item of maal has its pull of inclination which it exercises on different people.



It is plain common sense to understand that every member of the human race does not have the same inclination as the rest of mankind. This attribute too applies in different ways to different people. It suffices for some people to incline to a tangible object for it to be termed maal provided there is no restriction imposed by the Shariah on the utilization of that particular object. The Hanafi definition of maal does not require the inclination of every member of the human race for something to be termed maal.



This definition for its validity, also does not require everyone of inclination to display the same category of inclination. Some incline to some things by natural disposition while others incline intellectually. Others again incline in consideration of the teachings and spirit of the Shariah. Regardless of the category of inclination, the presence of this attribute in every Muslim relative to the millions of good things Allah Ta’ala has created for man’s use and nourishment, adequately confirms the veracity of the Hanafi definition of maal, irrespective of the chagrin of the copyright Molwis.



The definition of maal never purported that for a tangible object to be maal according to the Shariah, the inclination of every one of the one and half billion Muslims inhabiting this earthly globe be directed to that particular item. Such an expectation is ridiculous.



The Third Stupidity



The copyright Molwi alleges that many things which are not maal in terms of the Shariah, come within the scope of the Hanafi definition of maal, e.g. liquor. Inspite of the tabiyat of man inclining to it and inspite of the ability to preserve and store it, it is not considered maal. This is another fallacious attempt to negate the Hanafi definition.

In his imagination, the copyright Molwi has assumed that the two requisites of maal are found in liquor. In reality both ingredients which are stated in the Hanafi definition are non-existent in liquor. It has already been explained that there are different categories of inclination such as Aqli, Tab’i and Shar’i. None of these types of inclination exists in the true Mu’mineen in relation to liquor. Intellectually and by natural disposition, every Mu’min abhors liquor. A deranged disposition, corrupted and diseased by transgression and immorality is of no significance. Such diseased inclination has no validity and no bearing in the determination of inclination for the application of the definition of maal.



The very stench of liquor sickens a Mu’min, physically and spiritually. It is truly surprising for the Molwi Saheb to have attempted to neutralise the Hanafi definition by insinuating that the Mu’mineen have a natural or an intellectual inclination for the consumption of liquor. It is re-iterated that deranged attitudes and dispositions are of no significance in the definition of maal.



As for the condition of id-dikhaar (preservation), the Hanafi definition does not envisage the inclusion of just every tangible object which is preservable, within its scope. The copyright Molwi has conveniently overlooked that along with the two conditions he has mentioned, there is a third stipulation called intifaa’ (derivation of benefit). This condition too is not unrestricted. The intifaa’ has to be lawful according to the Shariah. The term is not applied in its literal sense. The Fuqaha state this condition with clarity, viz., Al-Intifaa’ Shar-un or the derivation of benefit which is lawful in the Shariah. This excludes such items which is maal for the Nasaara for example. Hence, pork and liquor are excluded from the Shar’i definition of maal notwithstanding the existence of id-dikhaar and the baselessly assumed condition of mailaan (inclination). Even if we assume that there are many Muslims who naturally incline to the consumption of liquor, the Al-Intifaa’ Shar-un requisite is lacking. The Hanafi definition, therefore remains valid and has not been dented by the stupidities advanced by the copyright Molwi.

His arrogant and audacious claim: “To me the definition (of the Hanafi Math-hab) is incorrect”, is dismissed as arrant nonsense uttered by a non-entity who has failed to understand the lofty rank of the Hanafi Fuqaha. Intifaa’ In his summing up of the different wordings presented by various Hanafi Fuqaha for the very same concept of maal acknowledged by the consensus of the Math-hab, the copyright Molwi avers: “In Badaaius Sanaai, Allaamah Kaasaani has narrated a number of examples from which it is clear that if intifaa’ (benefit) in something is permissible according to the Shariah, then in view of it being maal, its sale is permissible.”



He has submitted this hypothesis – groundless assumption – as proof for the contention that a trade name is maal because there is benefit in it, hence its sale is permissible. But he has not been able to sustain the contention of a trade name being maal according to the Hanafi Math- hab. The definition of Allaamah Kaasaani relates to only material/physical objects in which exists the condition of id-dikhaar, mailaan and intifaa-shar-un. In substantiation of his claim, he presents Allaamah Kaasaani’s fatwa on the permissibility of selling dogs because of the derivation of lawful benefit from them, e.g. guarding and hunting. But this example is ridiculous because a dog is a tangible object. It is not a figment in anyone’s imagination nor is it an abstract right such as the trade name right.



The Shariah has made intifaa’ from dogs lawful although the Shaafi Math-hab does not accept this permissibility. While the copyright Molwi is quick to extract support for his cause from the Shaafi definition of maal, he conveniently bypasses the Shaafi negation of maal in relation to a dog. For his patchwork ‘daleel’ the Molwi Saheb is constrained to weave his fabric from bits and pieces of cloth which he cadges from the various Math-habs.



All Hanafi Fuqaha accept the ruling in Badaaius Sanaai. It is not exclusive with Allaamah Kaasaani. However, it is utterly fallacious to extend the fatwa pertaining to dogs to the intangible entity called trade mark. While the former is maal, the latter is not.

Intifaa’ alone does not make something maal even if the intifaa’ is lawful. There are numerous benefits (manaafi) for children in their parents and vice versa; the same applies to husband and wife; there is great intifaa’ for a farmer in the water in a well or dam on his farm; there is intifaa’ for a property owner in the vacant space on top of his building; there is intifaa’ in the shade which his wall casts on a hot day, and similarly there is intifaa’ in other things, tangible and intangible. However, the quality of intifaa’ does not make these things maal. Trade is not permissible with these things notwithstanding their intifaa’.



Not one of the many examples in Badaaius Sanaai (some of which have been cited by the copyright Molwi) concerns a sale of rights or benefits or intangible (non-physical) things. The examples are of dogs, elephants, wild animals, insects, etc.



A trade name is something permissible. But it is not maal. A popular trade mark has its benefits for the trader. The benefits do not assign it to the category of maal. Not a single Hanafi Faqeeh has ever issued a ruling to classify abstract entities – rights and benefits – as maal notwithstanding their benefits and inspite of the permissibility of monetary compensation being permissible for certain Shar’i rights such as Qisaas, Diyat, Khula’, etc. The benefit and even the permissibility of monetary compensation in exchange for such abstract rights did not constrain the Fuqaha to bring such entitities within the purview of maal. There is therefore absolutely no validity in the claim of the copyright Molwi. It is haraam to sell a trade name. Franchise selling comes within the scope of this prohibition. And Allah knows best.