Single-judge Justice C Hari Shankar also said that the mark depicting a cross on background of any colour with ‘Swiss Military’ written below it cannot be registered by Promoshirt because it amounts to ‘false trade description’ and may force consumers into believing that goods were manufactured in Switzerland.
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 also cited the Delhi High Court’s Division Bench’s Judgment in Shree Nath vs Allied Blenders and Distillers Pvt. Ltd where the wonderment principle was elaborated that there is no necessity for going into the aspect of a senior user and a junior user and that if the consumer is in a state of wonderment due to the inherent nature of the mark, then there’s a confusion as to the origin of goods.
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.