Dental practice logo held to be confusingly similar to Red Cross emblem

Norway
In Røde Kors v AAAA Tøyen Tannlegevakt AS (Case 2010/253, May 12 2010), the Supreme Court has held that the logo of AAAA Tøyen Tannlegevakt AS could easily be confused with the emblem of Røde Kors (the Norwegian Red Cross), in violation of Section 328(2)(c) of the General Civil Penal Code. It is the first time that the Supreme Court has considered this provision.
 
Tøyen Tannlegevakt is a dental practice established in 2006. Tøyen Tannlegevakt started to use a logo consisting of:
  • a red cross with a white 'A' in each arm of the cross; and
  • a white tooth surrounded by two circles and topped by a star in the middle of the cross.
When Røde Kors became aware of Tøyen Tannnlegevakt’s use of the logo, it contacted the dental practice, claiming that its logo was confusingly similar to Røde Kors' emblem. Tøyen Tannlegevakt rejected the claim and Røde Kors reported the case to the police, alleging that use of the logo violated Section 328(2)(c) of the General Civil Penal Code. This provision concerns the unlawful use of a sign that can easily be confused with a trademark which, pursuant to an international agreement that is binding on Norway, is used in connection with the provision of aid to the wounded and sick, or the protection of cultural values in war. The case was first dismissed by the police, but was subsequently resumed by the Director General of Public Prosecutions.
 
The Oslo District Court found that the logo could easily be confused with Røde Kors’ emblem. However, the court found that the subjective conditions had not been fulfilled and, therefore, Tøyen Tannlegevakt was found not guilty.
 
The case was appealed to the High Court, which came to the same conclusion as the Oslo District Court, albeit on different grounds. Indeed, the majority of the High Court judges found that the logo in question could not easily be confused with Røde Kors' emblem.
 
The case was then appealed to the Supreme Court, which reached the same conclusion based, yet again, on different grounds.
 
The Supreme Court emphasized that, when assessing whether the logo could easily be confused with Røde Kors' emblem, it had to take into consideration the historical background of Section 328 of the code, including Norway’s obligations under international law when it acceded to the various Geneva Conventions (1864, 1906, 1929 and 1949).
 
The Supreme Court based its conclusion on the fact that the purpose of the 1949 Geneva Convention was to protect the wounded and sick in wartime. Furthermore, the court stated that, because Røde Kors' emblem was significant in war situations, the assessment of whether the logo could easily be confused with Røde Kors' emblem had to take into account such situations. Therefore, Section 328 would not be infringed only if the logo could not easily be confused with Røde Kors' emblem in war situations.
 
The Supreme Court, contrary to the High Court, disregarded the details of Tøyen Tannlegevakt's logo, which, at close range and under normal circumstances, would be sufficient to differentiate the logo from Røde Kors' emblem.
 
The Supreme Court thus concluded that the logo could easily be confused with Røde Kors' emblem in war situations and found Tøyen Tannlegevakt guilty.
 
Kaia Bugge Fougner and Felix Reimers, Advokatfirmaet Grette, Oslo

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