Delhi HC restrains firm from using Swiss Military symbol in trademark case

The court also cited the Daboutt's division bench's judgment in Shree Nath vs Allied Blenders and Distillers Pvt. Ltd where the wonderment principle was elaborated

The Delhi High Court on Wednesday restrained a private entity from using “Swiss Military” as a trademark and the Swiss flag symbol (white cross on a red background) on its clothing, pointing out that false trade description could not be registered.

The court’s intellectual property division gave its judgment on a pair of appeals challenging the Registrar of Trademarks’ orders allowing registration of “Swiss Military” and the use of the Swiss insignia.

The appellant, Swiss government arm Armasuisse, had challenged the deputy registrar’s orders favouring a private company.

The court said that the inherent nature of a mark (in this case, the cross symbol) itself would confuse people, citing Section 9(2)(a) of the Trade Marks Act, 1999 — which relates to deceptive marks. It pointed out that the use of such marks by the clothing firm went against the Act. The company had applied for the “Swiss Military” name and was using it with the flag symbol, both of which were deemed deceptive by the court.

The court said vis-à-vis the label with a black-and-white cross that once a mark is registered, it is acceptable to be used for all colours. Hence, any limiting criteria for colours do not apply. As such, a mark with a red-and-white or black-and-white colour combination is equally ineligible for registration. The court clarified that a red cross with white background and the words “Swiss Military” serve as a source identifier for the goods of Swiss origin.

The court also cited the Delhi High Court division bench’s judgment in <Shree Nath vs Allied Blenders and Distillers Pvt. Ltd> that had elaborated on the wonderment principle. It implies that if the consumer is in a state of wonder about the nature of a mark, there’s confusion about the origin of the goods.

Advocate Pravin Anand, appearing for Armasuisse, pointed out that from filing appeal to the judgment, the matter was settled in just 35 days. “This will strengthen public faith in India’s intellectual property laws,” he said.