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Taiwan Intellectual Property Office Released the Examination Procedure for Marks Containing the Design of Cross Symbol
To most people, the design of Cross symbol is commonly associated with first aid, medical services, products, or professionals. However, the design of "Red Cross symbol on White Background" (hereinafter "Red Cross symbol") is actually the official emblem of the International Federation of Red Cross and Red Crescent Societies (IFRC) and other national Red Cross societies. Under the Geneva Conventions, the use of "Red Cross Symbol" is limited and protected in order to facilitate humanitarian work carried out by medical personnel at wartime. In this regard, the handling of trademarks containing the design of Cross Symbol is often tricky and uncertain. For sake of consistency in examination, on 30 July 2019, Intellectual Property Office (IPO) released "the Examination Procedure for Marks containing the Design of Cross Symbol" (hereinafter "the Examination Procedure").
First of all, the design "Cross Symbol" governed by the Examination Procedure is "the non-stylized cross with arms of equal length", such as the cross design in the below:
(The emblem of the Red Cross Society of the Republic of China (Taiwan), Source: the Examination Procedure for Marks containing the Design of Cross Symbol)
The other types of Cross Symbol, such as Latin cross with unequal arm, Maltese cross or other variants are not governed by the Examination Procedure.
In essence, the Examination Procedure attempts to resolve three major issues regarding the handling of marks containing the design of Cross Symbol:
1. The Distinctiveness of Marks Containing the Design of Cross Symbol
The Examination Procedure pointed out, the design of Cross Symbol is commonly used as an indicator of medical services, products, or professionals in common trade practices. Therefore, if the designated goods or services of a mark involve pharmaceuticals or medical devices, the design of Cross Symbol in the mark will be considered as lack of distinctiveness.
However, judging from the overall impression, if the Cross Symbol in a trademark has the meaning of "plus" or "positive", the Cross Symbol will not be considered as non-distinctive per say.
2. The Potential Conflicts between Marks Containing the Design of Cross Symbol and the Emblem of Red Cross
According to Article 30-1(5) of the Trademark Act, a trademark that is identical with or similar to the armorial bearings, flags, other emblems, abbreviations, and names, of international intergovernmental organizations or well-known domestic or foreign institutions undertaking businesses for public interests and likely to mislead the public should be refused of registration. Therefore, under this provision, trademarks contain Red Cross Symbol will be refused by IPO.
However, the Examination explained that, if the Red Cross Symbol in a trademark has been stylized in a manner which is distinguishable to the Emblem of Red Cross, the above Article is not applicable on the trademark. In addition, if the Red Cross Symbol in a trademark indicates the meaning of "plus" or "positive", the above Article is not applicable either.
3. The Likelihood of Marks Containing the Design of Cross Symbol to Mislead the Public with respect to the Nature, the Quality or the Place of Origin of the Designated Goods/Services
Under Article 30-1(8) of the Trademark Act, a trademark that is likely to mislead the public as to the nature, quality, or place of origin of the goods or services should be refused of registration. Since the Cross Symbol is often used on medical services, products, or professionals, the according to the Examination Procedure, if the mark is used along with terms that promote the therapeutic effect of the product, it is likely to mislead the consumers.
Therefore, if the applicant of a mark containing the design of Cross Symbol designated the goods that are uncertain of their therapeutic effect, such as cosmetics or food, the mark should be refused based on the Article above.