811.543 Swiss National Emblem/1
The Swiss Legation to the Department of State
Aide-Mémoire
On numerous occasions, the Consulates of Switzerland in the United States have found themselves obliged to intervene with American corporations or individuals with a view to stopping the improper use of the arms of the Swiss Confederation (a white cross on a red ground) on products manufactured in the United States. This use is, in fact, common, and we find the coat of arms, the flag, the escutcheon or an imitation of the Swiss federal emblem on the packing or covering of the most varied products, as well as on signs, bill-boards (panneaux), etc., either as an unregistered trade-mark or simply by way of advertisement.
Most frequently, however, this misuse is observed on pharmaceutical and medical products etc. That is probably explained by the fact that the use of the red cross on a white ground, the insignia of the International Red Cross Society, was prohibited by the law of January 5, 190561 (with amendment of June 23, 1910: “An Act to incorporate the American National Red Cross”).62 As the public had become used to that symbol, certain merchants who were affected by that measure sought for a design resembling the red cross as closely as possible, and very naturally hit upon the reversing of the colors. The concerns in question are doubtless frequently making use, in good faith, of the national emblem of Switzerland, which they do not even know. By the act of February 20, 1905,63 amended on February 18, 1909,64 (an Act to authorize the registration of trade-marks used in commerce with foreign nations or among the several States or with Indian tribes, and to protect the same), the use of any national emblem or flag of any country in a registered trade-mark is forbidden. It follows that the Federal Cross can not be registered at the “Patent Office” as a trade mark. However, as far as non-registered marks and the use of the Federal Cross in commerce is concerned, the question is entirely different. To stop an improper use of the Swiss coat of arms, we might take as a basis the “Unfair Trade Act” (act of September 26, 1914),65 [Page 800] which prohibits unfair competition in general. To attain the desired end by that means, however, it is essential to prove that the practice in question “misleads the public”. It will be admitted that that is very difficult in most cases, if not impossible, as there is reason to believe that many persons in the United States are not acquainted with the coat of arms of Switzerland; hence it will be objected that, on that account, it could not be claimed that the public is misled as to the origin of the goods so marked.
The Convention of Union of Paris, of March 20, 1883,66 contains the following provision:67
Article 6, ter, Paragraph 1. “The contracting countries agree to refuse or to invalidate the registration and to prohibit, by appropriate means, the use, without authorization of the competent authorities, either as trade-marks or as elements of such marks, of coats of arms, flags and other national emblems of the contracting countries, official signs and stamps of inspection and guaranty adopted by them, as well as any imitation from the standpoint of heraldry”.
In the opinion of the Swiss Government, which is based on an interpretation by the Federal Patent Office, at Bern, this article is applicable not only to registered trade marks, but to those which are not registered. By its adhesion to the Convention named above, revised at “The Hague in 1925, which adhesion was proclaimed on March 6, 1931, the United States Government has therefore pledged itself to prohibit the use of national coats of arms, even if such is not of such a nature as to deceive the public as to the origin of the products.
On the other hand, attention should be called to the fact that in Article 28, Paragraph 1, of the Geneva Convention on the amelioration of the lot of the wounded and sick in armies in the field, of July 27, 1929,68 to which the United States became a party on August 4, 1932, it is provided that the Governments of the High Contracting Parties the legislation of which might not be adequate shall take or shall propose to their legislative bodies the measures necessary to prevent at all times “the use by individuals or corporations of the coat of arms of the Swiss Confederation or of signs constituting an imitation of it, either as a trade mark or for a purpose contrary to fairness in trade, or under conditions capable of wounding Swiss national feeling”.
The Swiss federal authorities would therefore be greatly pleased to see the United States adopt the law for the application of the Geneva [Page 801] Convention of July 27, 1929, contemplated in Article 28, Paragraph 1, of that Convention, or any other suitable measure.69
Finland, Austria, Sweden and Japan have already promulgated laws forbidding the use of the Federal Cross; Italy, on her part, has likewise given the Swiss Government the assurance that the improper use of the Swiss coat of arms would be prohibited, and everything leads us to anticipate that this question will also be satisfactorily settled as far as Germany is concerned.
On the other hand, reciprocity is assured by the federal act on the protection of public coats of arms and other public insignia of June 9, 1931, which prohibits, in Article 10, the use of foreign coats of arms and other insignia (on condition of reciprocity).
- 33 Stat. 599.↩
- 36 Stat. 604.↩
- 33 Stat. 724.↩
- 85 Stat. 627.↩
- 38 Stat. 717.↩
- Malloy, Treaties, 1776–1909, vol. ii, p. 1935.↩
- The provision here quoted is contained in the convention as revised at The Hague, November 6, 1925, Foreign Relations, 1925, vol. i, p. 269.↩
- Ibid., 1929, vol. i, p. 321.↩
- On May 18, 1936, the President of the United States transmitted to the Senate a letter from the Secretary of State, dated May 14, 1936, recommending the enactment of legislation necessary to fulfill the obligation of the United States under the convention of July 27, 1929 (House Document No. 494, 74th Cong., 2d sess.). An act to prohibit the commercial use in the United States of the coat of arms of the Swiss Confederation was approved June 20, 1936; 49 Stat. 1557.↩