'Swiss Military' trademark cannot be registered by a textile brand, may suggest links with Swiss military establishment: Delhi High Court

The Delhi High Court on Wednesday held that the mark ‘Swiss Military’ cannot be registered by a clothing and textile company named Promoshirt since it may suggest a link to Swiss military establishment [Armasuisse v The Trade Mark Registry & Anr]..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 observations were made by the Court as it set aside two orders of the Registrar of Trademarks granting registration of these marks to Promoshirt.The court was dealing with two appeals by Armasuisse (Swiss federal agency for defence procurement)..Justice Hari Shankar said that there was no explanation by Promoshirt for adoption of the ‘Swiss Military’ moniker and the use of the word military would seriously prejudice its case since it is not a word that can be used lightly.“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..Promoshirt was granted registration of these marks on July 25, 2022 despite Armasuisse’s opposition.The Swiss federal agency came to the High Court arguing that the marks in question are a ‘false trade description’ within the meaning of the Trade Marks Act and, therefore, not registrable.It was stated that Promoshirt was manufacturing its goods in China and that by using the appellation ‘Swiss Military’ and the distinctive red cross which constitutes Switzerland’s insignia, an impression was sought to be created that the products were of Swiss origin.However, Promoshirt argued that they have been using the mark since 1989 and that Armasuisse has no registered trademark like Promoshirt in India.Promoshirt also argued that if Armasuisse's arguments were to be accepted, marks like ‘Peter England’ and ‘American Tourister’ would become unregistrable..After considering the arguments and examining the marks, the court concluded that the white cross-on-red background indicia with words ‘Swiss Military’ below it is a ‘false trade description’ because it may compel common people into believing that the goods were made or manufactured in Switzerland.“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. 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. .Justice Hari Shankar also refused to accept the observations of the Registrar of Trademarks that the mark in question have rounded corners, and that the arms of the cross do not appear to be of the same length.The judge said that to a person who views the mark as affixed on goods, these distinctions pale into significance and the use of the ‘Swiss Military’ logo immediately below the white and red cross would dispel any chance of the mark being distinct or distinguishable from the Swiss insignia..Therefore, Justice Hari Shankar held that the marks showing a cross on background of any colour with Swiss Military written below it as well as the mark “Swiss Military’ in itself are all ineligible for registration in respect of textiles."Application numbers 1944698 and 969178 filed by the respondent before the learned Registrar shall stand rejected," the Court ordered..Reacting to the judgement, advocate Pravin Anand, who appeared for Armasuisse, said that the entire appeal was decided in just 39 days which showed how fast the Delhi High Court’s Intellectual Property Division was working.“I think it is a fantastic order, written in just 39 days of institution of appeal. This shows the way the IP division is working. This shows the world how fast the cases are being decided. It surely tells us what the general trend is. The trend is quick disposal,” he said..Armasuisse was represented by advocates Pravin Anand, Shrawan Chopra, Madhu Rewari, Vibhav Mithal, Shree Misra and Achyut Tewari of Anand and Anand Advocates.Senior Advocate Akhil Sibal along with advocates Anirudh Bakhru, SKBansal, Rishi Bansal, Ajay Amitabh Suman, Anmol Kakkar, Aditya Rajesh, Aishwarya, Asavari, Sanya and Tejaswini Chandrashekar appeared for Promoshirt..[Read Judgment]