Mark Bowman is a JD candidate at Osgoode Hall Law School.

The Courts of Appeals of Barcelona have dismissed an appeal by the Red Cross concerning the trademark infringement of the logo of the candy company Happy Pills. As reported by the Spanish website elPeriódico.com, the court rejected the Red Cross’s argument that the candy company’s logo could be confused for the well-established symbol of protection and neutrality.

The Happy Pills logo, at first identical to the Red Cross symbol but since transformed slightly in both shape and colour due to this lawsuit, was deemed by the courts to be different enough not to confuse the trademark of the company with that of the medical organization. The three judges who presided over the matter defined the characterizing features of the emblem as “the colours used” (the red cross on the white background), and “the figure of the cross” (five equal squares forming a cross with four equal arms) and then used an objective test to determine if the average person would view the Happy Pills version as an imitation of the iconic Red Cross logo.

The judges of the court admitted that the original logo design could be confused with the iconic cross, but subsequent changes by the candy maker were enough to avoid any infringement. Spain has ratified the Geneva Convention, 1949 which states in Article 44 of the First Convention that use of the Red Cross emblem is strictly forbidden in either time of peace or in time of war, unless to indicate or protect medical units. Spanish trademark law further protects ‘famous trademarks’ (those known to the public in general, a probable category for the Red Cross symbol) in section 8 of the Law 17/2001 of December 7, 2001, on Trademarks, and includes protection outside of the area of goods and services that the trademark resides.

Canadian courts could act in a similar matter if this issue were to arise within its jurisdiction as Canada has also ratified the Geneva Convention, and additionally its trademark legislation includes a provision (section 9(1)(f) of the Trademark Act) that explicitly states ‘No person shall adopt in connection with a business, as a trade-mark or otherwise, any mark consisting of…the emblem of the Red Cross…or the expression “Red Cross”’.

The decision by the Barcelona Court of Appeal, although logical within the area of trademarks, still allows for containers that appear to be medical in nature to display a logo that quite closely resembles that of the Red Cross (as shown in their product design here). Trademark infringement cases usually concern a detriment to the goodwill associated with the emblem of a commercial enterprise, but in this case we have a medical organization that wishes for rapid identification of their property potentially during times of incredible stress. A strong argument could be made, although maybe not within the subject of trademarks, that a larger distinction should be made between the two logos (such as a greater difference in colour).

The second half of the lawsuit requested damages for unfair competition concerning the emblem use and the unfair advantage that it gave to Happy Pills, however the courts ultimately decided that the advantage gained by the candy company was not ‘significant’ enough and instead reconfirmed the initial damages awarded at the original trial leading to the appeal.

Posted in European Union, Famous Marks, Trademarks