A single judge bench of Justice C Hari Shankar passed the judgment on a plea seeking usage of the term “Swiss Military” along with the insignia. The Delhi High Court Wednesday, while deciding two appeals moved by Armasuisse, the military wing of the Swiss government, set aside the orders passed by the Deputy Registrar of Trademarks which allowed a private company from using the former’s trademark “Swiss Military”. A single judge bench of Justice C Hari Shankar passed the judgment on a plea seeking usage of the term “Swiss Military” along with the insignia — a white cross on a red background —as a registered trademark by Promoshirt — a clothing and textile brand — as was allowed by the Deputy Registrar of Trademarks in its July 25, 2022, order. The HC held that the words “Swiss Military”, when used in conjunction with the red-and-white cross, would appear to any customer of average intelligence — presuming that they have knowledge of the fact that the red-and-white cross is the indicia of the Swiss confederation — as goods having a Swiss origin. “The mark would, therefore, be an indirect trade description regarding the country where the goods, bearing the mark, are manufactured or produced. Respondent 2 (Promoshirt) having used not only the white cross-on-red background indicia but also the words ‘SWISS MILITARY’ below it, there is no justification for the Court to presume that the public would not be compelled into believing that the goods were made or manufactured in Switzerland. The impugned mark, therefore, by its very nature, has the potential to deceive or, at the very least, cause confusion,” the HC held. The HC further observed that the impugned mark “would clearly” confuse the consumer into assuming that the goods have been manufactured or produced in Switzerland, amounting to a “false trade description” ineligible for registration under the Trademarks Act. The HC further rejected the Deputy Registrar’s order which allowed the registration of the impugned mark “without limitation of colour” thereby allowing Promoshirt to use the insignia as white cross on a black background or on a red background. “In the absence of any material to suggest that there was an absolute embargo on the Swiss military establishment using the ‘SWISS MILITARY’ appellation on goods put up for trade, the learned Deputy Registrar was not, in my view, justified in presuming that persons would never connect the goods, on which the mark figures, with the Swiss military establishment,” the HC stated. Giving an Indian example, the HC said that if backpacks with the words “Indian Air Force” were seen by people outside the country, then they would presume a link with the country’s 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. It is not easily that the ordinary person — who, as already noted, is a person who is aware and capable of discrimination — is likely to presume that the expression ‘Swiss Military’ is being used for ordinary commercially traded goods — as, however, they are — unconnected with the Swiss military establishment. In fact, the exception that the Swiss military establishment has, as the appellant in this case, taken to the use of the impugned mark by Respondent 2, speaks for itself. Even if used in a black and white format, therefore, the impugned mark would be ineligible for registration, in view of Section 9(2)(a) of the Trade Marks Act, as it is of a nature which would cause confusion in the mind of the public,” the HC held, while allowing Armasuisse’s appeals.