'Red Crystal' emblem provided with additional trademark protection

Canada

Bill C-61, which implements the Protocol Additional to the Geneva Conventions of August 12 1949 and Relating to the Adoption of an Additional Distinctive Emblem (Protocol III), has entered into force. Protocol III creates an additional distinctive emblem for the Red Cross and Red Crescent that is free from religious connotations. The new distinctive emblem, which has been dubbed the 'Red Crystal', is described by Protocol III as consisting of "a red frame in the shape of a square on edge on a white background". The Red Crystal symbol is intended to be placed on humanitarian and medical vehicles and buildings to protect them from military attack.

As specified by the Geneva Conventions, the four recognized emblems are to be used to denote only:

Bill C-61 amends the Geneva Conventions Act, the Trademarks Act and the Act to Incorporate the Canadian Red Cross Society in order to implement Protocol III. Specifically, Bill C-61 amends Section 9 of the Trademarks Act, which regulates prohibited marks. Section 9 prohibits anyone from "adopting in connection with a business" any of the listed prohibited marks, or any mark "so nearly resembling as to be likely to be mistaken for" any of the listed marks. Prior to Bill 61, Section 9(f) to (h) of the act read as follows:

"9(1) No person shall adopt in connection with a business, as a trademark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for:

(f) the emblem of the Red Cross on a white ground, formed by reversing the federal colours of Switzerland;

(g) the emblem of the Red Crescent on a white ground;

(h) the equivalent sign of the Red Lion and Sun used by Iran
."

Bill C-61 amends Section 9 of the act so as to include the Red Crystal emblem as a prohibited mark (prohibited marks also include national flags, the words 'United Nations' or its official emblem, and the international distinctive sign of civil defence).

The Red Cross has already sought to enforce its rights at the Trademark Opposition Board and in the Federal Court. In Canadian Red Cross Society v Simpsons Ltd ([1983] 2FC 372), the court refused to grant an interlocutory injunction against a merchandiser which sold green towels with a logo comprising a red cross. The Federal Court held that the balance of convenience favoured the defendant and that the loss of goodwill apprehended by the Red Cross was speculative.

Moreover, in Canadian Red Cross Society v Kit Care ((1998) 86 CPR (3d) 536), the Canadian Red Cross Society successfully invoked Section 9 to oppose the registration of a mark in which a cross figured prominently. The failure of the applicant to undertake not to colour the cross in red meant that the applicant's mark would be "almost identical to or at least likely to be mistaken for the opponent's Red Cross".

John Macera, Macera & Jarzyna - Moffat & Co, Ottawa

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