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07 February 2023
Sonal Madan, a partner at Chadha & Chadha IP in New Delhi, said that the right to trademark registration must be “sedulously guarded."
“Orders of this nature play a significant role in creating a precedent of deterrence amongst infringers. It is quite common for private companies to use appellations for their goods,” said Madan. “However, as affirmed by the Court, 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.”
Madan was speaking about the Delhi High Court’s recent decision to set aside the Deputy Registry of Trademarks’s July 25, 2022 order which allowed the registration of two marks for Indian clothing and textile company Promoshirt. These two marks are “Swiss Military” and one showing a white cross against a red background. This second mark is actually the insignia of the Swiss Confederation, or Switzerland.
The High Court stated that had these two marks been registered for Promoshirt’s products, it would have caused the public to believe that said products were manufactured in Switzerland. At the very least, the symbol of a white cross on red background with the words “Swiss Military” written below it, would have caused confusion. Such mark would be a “false trade description,” thus cannot be registered.
“The Court rightly pointed out that certain terms such as ‘military’ carry with them unprecedented notoriety and cannot be used lightly. In order to substantiate its view, the Court noted that if, for instance backpacks bearing the words ‘INDIAN AIR FORCE’ were to be seen by persons outside India, it is obvious that an average consumer 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,” said Madan. “Thus, it is likely that an ordinary person will presume that the expression ‘SWISS MILITARY‘ is connected with the Swiss military establishment.”
“This case will serve as a pathway for more agencies to come forward and object to unauthorized use of the official insignias as well as appellations and other terms, which create deception and confusion in the minds of the public,” she added.
Madan also noted that the decision on the appeal by the Swiss military is also significant in that it is one of the fastest disposals of such appeals. "The decision in the Appeal came out in about 35 days. This is a clear reflection of the swiftness of the newly-formed IP Division of the Delhi High Court in disposal of IP suits,"she said.
- Espie Angelica A. de Leon
