Can You Trademark the Swiss Flag Symbol?

Various forms of the Swiss Flag symbol appear on a variety of luggage and knapsacks sold in Canada. A trademark search of the CIPO database shows that there are many variations of the Swiss Flag symbol are registered and abandoned over the years.

The Canadian Trademarks Act lists various types of prohibited marks at section 9(1), stating:

9 (1) No person shall adopt in connection with a business, as a trade-mark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for,

(f) the emblem of the Red Cross on a white ground, formed by reversing the federal colours of Switzerland and retained by the Geneva Convention for the Protection of War Victims of 1949 as the emblem and distinctive sign of the Medical Service of armed forces and used by the Canadian Red Cross Society, or the expression “Red Cross” or “Geneva Cross”;

(i.2) any national flag of a country of the Union;

and section 12 reads:

When trade-mark registrable

12 (1) Subject to section 13, a trade-mark is registrable if it is not:

(b) whether depicted, written or sounded, either clearly descriptive or deceptively misdescriptive in the English or French language of the character or quality of the goods or services in association with which it is used or proposed to be used or of the conditions of or the persons employed in their production or of their place of origin;

….

(e) a mark of which the adoption is prohibited by section 9 or 10;

So you would think that the Swiss Flag symbol can’t be registered as a trademark in Canada.

However, there are registrations of marks that resemble the Swiss Flag symbol.

In an odd turn of events happened in a recent Federal Court of Canada decision, in

Group III International Ltd. v. Travelway Group International Ltd.

Court (s) Database
Date
Neutral citation
File numbers

https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/300786/index.do

 

 

David Michaels

David Michaels, J.D., B.Eng., CHRM is a legal blogger (and a trained attorney) who holds certificates in Canadian Trademark Law (2012) and Canadian Patent Law (1996) from McGill University. He has worked in the area of trademark law in Canada since 1995 and in the USA since 1993.

David is a brand consultant, a writer, an eCommerce entrepreneur, and an aeronautical engineer.
http://ca.linkedin.com/in/davidtmichaels/

Warning & Disclaimer: The pages, articles and comments on trademarkpro.ca do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the author’s notes of the current state of trademark law and should not be attributed as opinions of the author, his employer, clients or the sponsors of trademarkpro.ca. The author does not warrant that these notes are up-to-date. Trademark law is constantly changing and it varies between jurisdictions and even within jurisdictions. This website should not be relied upon.

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