'Bound To Suggest Link To Swiss Official Establishment': Delhi High Court Sets Aside Orders Granting Trademark Registration Of ‘Swiss Military’ Mark To Private Company

Ruling in favour of Armasuisse, which is a federal agency of Switzerland, the Delhi High Court has declared various marks under the name “Swiss Military” ineligible for trademark registration.

Justice C Hari Shankar allowed the appeals moved by Armasuisse, which represents the military wing of the Swiss Government, and set aside the orders passed by Deputy Registrar of Trademarks permitting trademark registration in favour of a private entity, Promoshirt, for the impugned marks in respect of clothing and textile.

“…it cannot be held 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; Section 9(1)(b) would not, however, stand attracted on that ground," the court observed.

The court was of the view that the right to trademark registration must be "sedulously guarded" and that any provision which abrogates or curtails the right to registration of a trademark has to be strictly construed.

The right of registration to a mark cannot be denied on fanciful apprehensions, the court added.

Justice Shankar also ruled that a mark which is a “false trade description” within the meaning of section 2(1)(za)(iv) of the Trademarks Act is non-registrable.

“Any description, statement or other indication, direct or indirect, as to the country of manufacture or production of goods, contained in the trade mark affixed on the goods would, therefore, be a ―false trade description‖ and, inasmuch as the mark would be of a nature which would deceive the public or cause confusion, would also be ineligible for registration under Section 9(2)(a),” the court said.

It was also observed that if the trademark indicates the country of manufacture of the goods, it will be a trade description within the meaning of section 2(1)(za)(iv).

“Though the words “SWISS MILITARY” when used either by themselves or in conjunction with the red and white cross may not provide any direct indication regarding the country of origin of the goods as would be likely to be misunderstood or mistaken as such, when the words "SWISS MILITARY‘ are used in conjunction with the red-and-white cross , thus, any customer of average intelligence – which would presume knowledge of the fact that the red-and-white cross is the indicia of the Swiss confederation – would regard the mark as indicating that the goods are of Swiss origin," the court said.

The court thus concluded that the impugned mark using the Swiss insignia along with the words “SWISS MILITARY” would clearly confuse the consumer of average intelligence into assuming that the goods to have been manufactured or produced in Switzerland.

“The mark would, thereby, be a false trade description and be ineligible to registration within the meaning of Section 2(1)(i)(I) as well as be rendered ineligible to registration under Section 9(2)(a) of the Trade Marks Act,” the court said.

The court also observed that the impugned mark, being of such an unusual use, is bound in the perception of an ordinary consumer to suggest a link to the Swiss official establishment and even to the Swiss military establishment.

It thus added that in absence of any material to suggest that there was an absolute embargo on the Swiss military establishment using "SWISS MILITARY" appellation on goods put up for trade, the Deputy Registrar was not justified in presuming that persons would never connect the goods with the Swiss military establishment.

"If, for example, backpacks bearing the words "INDIAN AIR FORCE" were to be seen by persons outside India, it is obvious, to my mind, that they would presume a link with the Indian Air Force, whether the words were, or were not, accompanied by the official Indian Air Force insignia. The words "INDIAN AIR FORCE", like the words "SWISS MILITARY" carry their own solemn connotation," the court said.

Allowing the appeals, the court rejected the trademark applications moved by the respondent entity in respect of the impugned marks.

Advocate Pravin Anand, Shrawan Chopra, Madhu Rewari, Vibhav Mittal, Shree Mishra, and Achyut Tewari represented ARMASUISSE

Senior Advocate Akhil Sibal, along with Advocates Anirudh Bakhru, S.K.Bansal, Rishi Bansal, Ajay Amitabh Suman, Anmol Kakkar, Aditya Rajesh, Aishwarya, Asavari, Sanya and Tejaswini Chandrashekar appeared for respondent no. 2. 

Title: ARMASUISSE v. THE TRADE MARK REGISTRY & ANR.

Citation: 2023 LiveLaw (Del) 6 

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