International trademark clashes with Swiss national emblem

When reading CONCEPT+ many would pronounce the name as CONCEPT PLUS, yet the Swiss Intellectual Property Office and Federal Administrative Court both disagreed. This was what Kaufland Warenhandel GmbH & Co KG found out when they sought to extend the protection of their international trademark into Switzerland.

The Swiss IPO and, on appeal, the Federal Administrative Court both held that Kaufland could not register their CONCEPT+ mark in Switzerland given that when used in red, the "+" is a cross and thus is protected due to the connection it has with the International Committee of the Red Cross (ICRC). The application for protection also failed because when used in white on a red background, the cross is similar to the Swiss flag. This cannot be registered as a trademark according to the Swiss National Emblem Act. Kaufland argued unsuccessfully, that the thickness of the lines in the plus mark used in CONCEPT+ was different to those used in the Swiss flag.

The above is akin to the position in the UK under the Trade Marks Act 1994 which prohibits the registration of trademarks that are associated with the Crown unless consent is given. The 1994 Act also prohibits the registration of the national flags of the countries which make up the UK and the UK national flag itself, if the use of the trademark would be misleading or grossly inoffensive.

Prospective parties looking to register a trademark which contains the "+" mark for protection in Switzerland can wait until 1 January 2017 when the revised Swiss National Emblem Act comes into effect. The revised Act will allow the Swiss cross, but not the Swiss emblem, to be a registerable trademark provided that the goods upon which it is affixed originate from Switzerland. Alternatively, they could disclaim use in red and use in white on a red background or prove that within the context of the sign the "+" is only understood as a plus sign.

Interestingly the ICRC's position is that the Red Cross is not a religious symbol, but rather a plus sign. If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.