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. , the court rejected the Red Cross鈥檚 argument that the candy company鈥檚 logo could be confused for the well-established .
The Happy Pills logo, but 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聽over the matter defined the characterizing features of the emblem as 鈥渢he colours used鈥 (the red cross on the white background), and 鈥渢he figure of the cross鈥 (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 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 鈥榝amous trademarks鈥 (those known to the public in general, a probable category for the Red Cross symbol) in section 8 of the , 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 , and additionally its trademark legislation includes a provision () that explicitly states 鈥楴o person shall adopt in connection with a business, as a trade-mark or otherwise, any mark consisting of鈥he emblem of the Red Cross鈥r the expression 鈥淩ed Cross鈥濃.
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 (). 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 ().
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 鈥榮ignificant鈥 enough and instead reconfirmed the initial damages awarded at the original trial leading to the appeal.