Tøyen tannlegevakt (TT) – a dental clinic – registered its logo consisting of a red cross containing four white As and a representation of a tooth in 2007. When becoming aware of the mark, the Norwegian Red Cross ordered TT to cease use because the mark was easily confused with the Red Cross emblem. When TT refused, Red Cross filed a complaint.
TT was fined for having violated the Penal Code section 328. This provision states that those who use a sign or name, or any sign easily confused with such sign or name, which, by any international treaty binding upon Norway, is reserved for use in connection with the aid of the sick and wounded or protection of cultural values in war, may be penalised by fines or up to three months imprisonment.
TT refused to pay the fine and the case was brought to trial. TT was acquitted in two instances and the case was appealed to the Supreme Court.
The court stated that the Penal Code provision referred to the 1949 Geneva Convention and that the question before the court was whether TT's cross was easily confused with the Red Cross emblem. This would depend on an interpretation of the provision in light of its history.
Section 328 of the Penal Code was implemented in 1902 and amended in 1909 when the 1906 Geneva Convention committed member states to implement rules to protect the Red Cross emblem. The 1949 Geneva Convention, still in force, states in Article 53:
The use by [...] other than those entitled thereto under the present Convention, of the emblem or the designation "Red Cross" or "Geneva Cross" or any sign or designation constituting an imitation thereof [...] shall be prohibited at all times.
The Ministry of Justice decided upon inauguration that section 328 fulfilled Norway's obligations under this treaty.
In view of this the court concluded that section 328 must be interpreted in light of Article 53 and noted that this provision was aimed at times of war. It followed that regard must be had to how the subject mark would be perceived at some distance and in stressed situations.
The court then held that TT's mark placed over the entrance of a clinic would be easily confused with the Red Cross emblem. Despite the letters A, the tooth in the middle and the light green background, particularly at night when the neon light was turned on, the red cross would be the dominant element. The signs were therefore easily confused within the meaning of Section 328.
Though the decision is not based on the Trade Marks Act, it is presumed that the decision will establish precedents for the provision barring registration of marks confusingly similar to official flags, emblems, etc as well.
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| Steinar Lie |
Bryn Aarflot AS
Kongens gate 15
PO Box 449 Sentrum
NO-0104 Oslo, Norway
Tel: +47 46 90 30 00
Fax: +47 22 00 31 31
mailto@baa.no
www.brynaarflot.com