Supreme Court reaffirms strong protection of Red Cross emblem
The Swiss Supreme Court has upheld a decision of the Commercial Court of the Canton of Berne in which the latter had granted a claim of the Swiss Red Cross Association seeking to prevent a trademark owner from using the logo depicted below and had also cancelled the trademark at issue (Supreme Court, 4A_41/2014, May 20 2014).
Based on the Geneva Convention of August 12 1949 for the Protection of War Victims, the Swiss Federal Act concerning the Protection of the Sign and Name of the Red Cross of March 25 1954 (the Red Cross Act) sanctions the abuse of the Red Cross emblem by unauthorised third parties. Under the Red Cross Act, the use of the Red Cross sign (ie, a cross in any shade of red on a white background) is reserved exclusively to the Swiss Red Cross and its authorised users. The use of the Red Cross or similar signs is otherwise prohibited, with the exceptions mentioned below.
The Swiss standard for assessing the unlawful use of the Red Cross as a trademark is strict and deviates from the minimum standard set by Article 6ter (1)(a) of the Paris Convention and the more relaxed standard implemented by other countries (see, eg, the Spanish example in “Rounded fuchsia cross does not imitate Red Cross emblem”).
The Red Cross Act prohibits the use of any (red) cross in any similar shape and colour on a white background. The Swiss practice does not take into account the overall impression of a trademark with all its different elements, and does not consider the goods or services for which it is registered. For protection to kick in, it is sufficient that the 'red cross' element is perceived as such in the mark. A likelihood of confusion between the trademark as a whole and the Red Cross emblem is not required.
As a result of the application of this strict standard, the logo depicted above was considered to be an invalid trademark, since the small gap on the right side of the cross was not considered sufficient to differentiate the mark from the Red Cross emblem.
The current Swiss practice, which has once again been affirmed by the Supreme Court in this ruling, makes it - in principle - impossible to use or register a cross-shaped sign in a red colour (or in a very similar colour such as dark orange) in any class. However, since the protection of the Red Cross emblem is so closely linked to the colours red and white, any likelihood of confusion with the Red Cross emblem can be excluded if the trademark includes a disclaimer (ie, disclaiming the use of a red cross on a white background) or specifically claiming a different colour (eg, a green cross).
This strict practice is not easily understood by practitioners from other jurisdictions, especially as the Swiss Federal Institute of Intellectual Property (IGE) sometimes even goes as far as considering the plus sign (+) as being too similar to the Red (or Swiss) Cross, unless there is a disclaimer for the colours red/white, even though many trademarks with a plus sign have been registered in the past. Perhaps this ever more overreaching practice of the Swiss IGE will eventually be clarified by the Supreme Court.
Markus Frick and Christine Scherrer, Walder Wyss Ltd, Zurich
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