Swiss government secures Indian TM victory
Delhi High Court rules in favour of Switzerland in clothing clash | The military wing of the Swiss government opposed two trademarks.
In a win for the Swiss government, the Delhi High Court has restrained a company from using the Swiss flag on its clothing.
The ruling, handed down yesterday, January 4, set aside the Registrar of Trademarks’ orders which had allowed the registration of a logo including the Swiss flag alongside ‘Swiss Military’ and the wording ‘Swiss Military’ as trademarks for clothing.
The military wing of the Swiss government opposed the registration of the two trademarks, applied for by Promoshirt SM. However, the Registrar of Trademarks rejected the oppositions and permitted registration in July this year.
According to the High Court, the mark (which consisted of the red and white Swiss cross) would confuse the public into linking the goods, on which the mark features, with Switzerland and was therefore ineligible under section 9(2)(a) of the Trade Marks Act.
The court also rejected the argument that the registration could be limited to a black and white cross instead. It noted that the impression of Swiss origin was not solely attributable to the red and white colouring, but that the words ‘Swiss Military’ also played a role.
“The words ‘Swiss Military’ have a large part to play in the impression that the mark would carry. It would be folly to analogise a mark such as ‘Swiss Military’ with a mark such as, for example, ‘Peter England’ which, as a phrase has no etymological meaning at all, so that it becomes instantly fanciful, and can, therefore, be kept out of the reckoning,” said the court.
It continued: “‘Swiss Military’ however, conjures up an instant mental picture of the Swiss military establishment. A mental connection with Switzerland is, therefore, inevitably made.”
The court added that although the words ‘Swiss Military’ may not provide any direct indication of the country of origin, when combined with the red and white Swiss cross, any customer of average intelligence would regard the mark as indicating that the goods are of Swiss origin.
“The impugned mark, therefore, by its very nature, has the potential to deceive or, at the very least, cause confusion,” said the court.
The Registrar of Trademarks orders were quashed and set aside and both trademarks were rejected.
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