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Use Of The Swiss Federal Cross In Trade Marks
March 2009 | Intellectual Property & Technology | IP Edge

Many businesses like to incorporate the device of the Swiss federal cross in their trade marks. The owner of the SWISS POLO mark is no different.

Lohmun Leather Products filed a trade mark application for the SWISS POLO mark. In their application, they specifically stated that their mark would be limited to the colours red, white and black. The mark was opposed by The Polo/Lauren Company, L.P. which claimed that the mark was confusingly similar to their family of POLO marks, and that the mark should not be registered as it consisted of the Swiss federal cross and also adopted the coat of arms of Switzerland.

The Registry of Trade Marks rejected The Polo/Lauren Company, L.P.’s argument that the SWISS POLO mark was similar to their family of POLO marks, but nevertheless, the opposition succeeded on the grounds that the mark contained the Swiss federal cross and also adopted the coat of arms of Switzerland. This case is of significance as it is the first decision in Singapore regarding the use of a trade mark consisting of the Swiss federal cross.

Section 56 of the Trade Marks Act provides that a trade mark may not be registered if it consists of or contains:

In addition, rule 12 of the Trade Mark Rules provides that “The Registrar shall refuse to register a trade mark which consists of or contains the words “Red Cross” or “Geneva Cross”, any representation of the Geneva Cross or the Red Cross, any representation of the Swiss federal cross in white on a red background or silver on a red background, or any representation similar to any of the foregoing”.

Lohmun Leather Products argued that the presence of the word “Swiss” on their mark did not necessarily indicate an association or connection with a Swiss entity or Switzerland and thus, the relevant public would not have been deceived into believing that there was such a connection. They further argued that the cross device in their logo was not the Swiss federal cross and was only one aspect of their proposed mark.

The Registrar held that the mark contained the Swiss federal cross and the registration of the mark would contravene section 56 of the Act and rule 12(d) of the Trade Mark Rules. Although the applicant’s mark was made up of various elements such as the word mark “Swiss Polo”, the polo player device, a white cross and a red shield, the Registrar held that as long as a mark contains the Swiss national flag which consists of the Swiss federal cross in white on a red background, it would contravene section 56 of the Act and rule 12 of the Trade Mark Rules. This would be so even where the applicant’s mark is not square in shape and as long as the elements of the Swiss flag, that is, the white cross on a red background, appears. The applicant’s case was exacerbated since the mark was restricted to the colours red, white and black – red and white being the colours of the Swiss national flag.

Even where the applicant’s mark was not identical to the Swiss national flag, the Registrar held that it would still be caught by section 56 in that it imitated, from a heraldic point of view, the Swiss national flag.

Apart from the fact that it is not possible to register a trade mark containing the device of the Swiss federal cross, it should also be noted that the Geneva Conventions Act prohibits the use of “any design consisting of a white or silver cross on a red ground” or any other mark which is a colourable imitation. Use of such a mark would be an offence punishable by a fine not exceeding S$10,000 or to imprisonment for a term not exceeding six months or to both and any goods upon or in connection with which the mark is used shall be forfeited.

Further, if the offence is committed by a body corporate or society, and if it is proved to have been committed with the consent or connivance of any director, manager, secretary or other officer of the body corporate or society, such individual, as well as the body corporate or society, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Traders should therefore be very careful when adopting marks which contain the device of a cross, even where the colours of the mark are not the Swiss national flag colours of red and white since the prohibitions extend to similar logos that imitate the Swiss federal cross.