While examining as to whether the mark, depicting a white cross on a red background, and the ‘SWISS MILITARY’ word mark, individually or in conjunction with each other, can be registered in India in relation to textiles, footwear, etc., in Class 25, the Delhi High Court has held that false trade descriptions are not registrable.
Observing that a trade description which is untrue or misleading in a ‘material respect’ regarding the goods to which it is applied is a ‘false trade description’, the Court held that the country of manufacture of goods is certainly a ‘material respect’, within the meaning of Section 2(1)(i)(I) of the Trade Marks Act, 1999.
According to the Court, if a trademark is untrue or misleading regarding the country of origin of the goods on which it is used, there is no reason to believe that it would not deceive the public or cause confusion, as the intent to deceive or cause confusion can be read into the very use of the mark.
Further, the Court in its judgement dated 4 January 2023 also held the mark depicting a white cross on a red background, and the ‘SWISS MILITARY’ word mark, individually or in conjunction with each other, as false trade description. It, in this regard, observed that if the trademark even indirectly indicates the country of manufacture of the goods, it is a ‘trade description’ within the meaning of Section 2(1)(za)(iv).
According to the Court, if the country of manufacture or production suggested by the use of the mark on the goods is not, in fact, their country of manufacture or production, the mark would be a ‘false trade description’. The Court was of the view that the use of the impugned mark would be an indirect trade description regarding the country where the goods, bearing the mark, are manufactured or produced.
The Hon’ble High Court held that if the impugned mark deceives, or confuses, the average consumer into mistaking the goods to be manufactured or produced in Switzerland, i.e., of Swiss origin, it is immediately hit by Section 9(2)(a), as the goods are, admittedly, not of Swiss, but of Chinese origin. Also, the Court held that even if mark is used in a black and white format, it would be ineligible for registration.
It may be noted that Appellant’s contentions regarding Sections 9(1)(b), 11(3)(a) and 144 of the Trade Marks Act, 1999, were however rejected by the Court in Armasuisse v. Trade Mark Registry.
