Delhi High Court rules 'Swiss Military' Trademark is ineligible for registration as a mark for textiles
Delhi High Court rules 'Swiss Military' Trademark is ineligible for registration as a mark for textiles
The Delhi High Court in the case of Armasuisse v. The Trademark Registry & Anr ruled in favour of the appellant Armasuisee, and observed that the words 'Swiss Military' are not eligible for registration as a mark for textiles, highlighting that they have 'solemn connotation' and would trigger confusion among the public.
The single judge Justice C. Hari Shankar admitted the two appeals filed by the appellant, which is a federal agency of Switzerland and represents the military wing of the Swiss Government and quashed the orders passed by the Deputy Registrar of Trademarks which initially had allowed the registration in favour of respondent No. 2 which is a private entity named Promoshirt, for the impugned marks in respect of clothing and textile. The official symbol of the agency has a white cross on a red background.
The respondent no. 2 had filed an application in the Registrar of Trademarks, New Delhi for registration of the trademark 'Swiss Military' for textiles including clothes, footwear, headgear, coats, socks etc and the mark of a white cross on black background.
Mr. Pravin Anand who was appearing on behalf of the appellant submitted to the Court that the impugned logo of Promoshirt cannot be registered in view of the proscriptions contained in Section 2(1)(i)(I) and Section 2(1)(i)(IV)(a) which defines 'false trade description' and Section 102 and 103 which states 'falsifying and false applying trademarks' and 'penalty for applying false trademarks, trade descriptions etc', respectively as per the Trade Marks Act, 1999. The appellant also supported his argument by placing reliance on Section 9(2)(a) which states the 'absolute grounds for refusal of registration' of the Trade Marks Act, 1999.
Mr. Akhil Sibal who was appearing on behalf of respondent no. 2 retaliated that respondent no. 2 is the prior user of the impugned mark is using the mark since 1989, continuously. He submitted that the impugned mark, must inherently and unequivocally indicate, to the customer, that the goods, on which the mark figures, were made in Switzerland. Furthermore Section 9 contains absolute grounds for refusing registration, its provisions must be strictly construed and stated that it would be unrealistic to presume that the consuming public would, because of the use of the impugned marks by respondent no. 2, deem the goods, on which they are used, to emanate from the Swiss defense forces.
Accordingly, the Court after examining the submissions put forth by the parties observed that it cannot be considered that the use of the white cross on a red background, or the 'SWISS MILITARY' logo below it, serves in trade to designate the geographical origin of the goods as being Switzerland. The possibility of such a mark confusing or deceiving the public into believing that the goods are of Swiss origin when, in fact, they are not, may fatally imperil the entitlement of the mark to registration in view of Section 9(1)(a) of the Trade Marks Act and Section 9(1)(b) would not, however, stand attracted on that ground.
The Court regarded that the right to trademark registration must be 'sedulously guarded' and consequently any provision which abrogates, or even curtails, the right to registration of a mark as a trade mark has, therefore, to be strictly construed. The right of registration to a mark cannot be denied on fanciful apprehensions.
The Court observed that a mark which is a 'false trade description' within the meaning of Section 2(1)(za)(iv) of the Trade Marks Act, 1999 is a non-registrable. The Court asserted that the impugned mark, which not only uses the Swiss insignia, but also the words 'SWISS MILITARY' below it, would clearly, at the very least, confuse the consumer of average intelligence into assuming the goods to have been manufactured or produced in Switzerland and that the mark would be a false trade description and was not eligible for registration under Section 9(2)(a) of the Trade Marks Act, 1999.
The Court felt it was important to cite the example like the words 'Indian Air Force' bearing on backpacks were to be seen by persons outside India, people would presume a link with the Indian Air Force, whether the words were, or were not, accompanied by the official Indian Air Force insignia.
Additionally, the Court highlighted that the impugned mark, being of such an unusual use, was bound to be perceived by an ordinary consumer to suggest a link to the Swiss official establishment and even to the Swiss military establishment. It thus added that the Deputy Registrar was not justified in presuming that persons would never connect the goods with the Swiss military establishment.
To conclude the Delhi High Court allowed the appeals and quashed the trademark applications filed by the respondent entity in respect of the impugned marks.
