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Trademark tangle: Will the Indian Medical Association be able to adopt a new ‘red cross’ logo?

The Geneva Convention prevents the use of any symbol similar to the Red Cross emblem of the International Committee of the Red Cross.

The Indian Medical Association is going to prescribe a new emblem to help the public distinguish doctors with MBBS degrees from practitioners of Ayurveda or Unani who often misleadingly refer to themselves as doctors. The new symbol is going to be a red cross with the word “Dr.” written at the centre. The Indian Red Cross Society has already raised an objection to the use of such a symbol on the grounds that it resembles the symbol of the International Committee of the Red Cross or ICRC.

Speaking to The Hindu, the president of the Indian Medical Association KK Aggarwal explained that the logo would be different from the Red Cross logo. “We have used a lighter red shade for the cross, and we also have the abbreviation ‘Dr’ in the centre, which will differentiate the logo,” Aggarwal told the newspaper.There is no duplication as far as we are concerned. This is to ensure that quacks are contained. The world over we have white, blue, green cross. That doesn’t mean that we can’t use cross for as a symbol.”

However, going by the history of the ICRC’s efforts to prevent the use of its symbol, the Indian Medical Association may not find it all that easy to adopt this new logo.

Set up in 1863, the primary goal of the ICRC was to provide for improved care for wounded soldiers in wartime. It was responsible for getting governments to agree to the Geneva Convention to set down minimum standards of treatment of soldiers during conflicts and also introduced the Red Cross against a white background as a common symbol to be used by medical services in conflict situations.

The Red Cross is often identified with Christianity. The Red Cross is also seen as a color reversal of the Swiss National Flag. Similarly the official explanation of the red crescent that is used in Islamic countries, instead of the Red Cross, is that it is the colour reversal of the flag of the Ottoman Empire.

In India, there has been at least one instance in 2002 where the Ahmedabad Medical Association, in response to a campaign by the RSS backed Arogya Bharti, decided to promote the use of the Swastika sign by doctors after a controversy over using a red cross. Although the Swastika was made notorious by the Nazis during World War II, it owes its origins as a symbol of Hinduism and is still used in India.

In India, Parliament enacted the Geneva Convention Act, 1960 – an Act to put into effect international conventions agreed to at Geneva in 1949 to which India is a party – prohibiting the use of the Red Cross or any confusingly similar design without the approval of the Central Government. According to this legislation, unauthorised use of the Red Cross is punishable with a fine of Rs 500 and any goods bearing the symbol would be liable to forfeiture.

Red cross, green cross

Historically, the ICRC has faced an uphill battle to ensure that the Red Cross is not used without its authorisation. Not long ago, pharmacists, doctors and hospitals across India liberally used a red cross on their premises and vehicles to signify their association with the medical profession. It took considerable effort by the ICRC to convince pharmacists and hospitals to stop using any red cross signs. This is one of the reasons that pharmacies these days adopt a green cross.

A decade ago, when the ICRC was fighting to stop medical practitioners in India from using the Red Cross, the Indian Medical Association was involved in a campaign to inform the profession that a red cross mark should not be displayed. A news report from 2007 highlighting the role of the association said: “The Indian Medical Association (IMA), the representative body of doctors in India, is not resisting the change. ‘When the Red Cross insists, we have to obey,’ says IMA secretary general SN Misra.”

The Indian Medical Association has already adopted the “Rod of Asclepius” on its flag. This symbol – a serpent entwining a rod – is associated with the Greek god of medicine and healing, Asclepius.

(Image: Twitter)
(Image: Twitter)

It is therefore surprising that, the association now feels that it needs a symbol other than the Rod of Asclepius to distinguish between allopathic and other doctors and has decided to a adopt a red cross symbol across the profession. It is possible that the association has misunderstood the law on the point and is assuming that it can use a red cross because it believes it has received a “No objection certificate” or NOC from the Intellectual Property Office in response to a trademark application filed by the IMA. The Hindu report quotes from this saying, “no trademark identical with or deceptively similar to the said artistic work has been registered or applied for registration under the Trade Marks Act 1999 as per computer record of this office.”

Section 45(1) of the Copyright Act requires NOCs from the Trademark Registry in cases when an artistic work is being registered under the Act. The NOC, however, only tells the Copyright Office that a similar mark has not been registered with the Trademark Registry, as argued in this piece. It does not mean that the mark is automatically registered as a trademark. For that, a trademark application has to be filed with the Trademark Registry. The Trademark Registry then prepares an examination report and advertises the application in the Trade Mark Journal inviting oppositions from any interested parties. Going by the newsreports on the issue, it is unclear what the IMA’s position is.

Even presuming that the Indian Medical Association’s trademark is registered, the Trade Marks Act protects what are essentially negative rights. This means that once a trademark is registered, the proprietor of the trademark has the right to restrain others from using the identical or similar mark for identical or similar goods and services. The law protects prior users, which means, in this case, if the ICRC can show that it has been using the mark for 150 years, it cannot be stopped from using the mark even if Indian Medical Association gets a registration. However, registration under the Trade Marks Act does not give the proprietor the right to use a mark, if it has otherwise been prohibited by any other law.

Therefore, in this case, even if the Indian Medical Association succeeds in registering this new logo as a trademark, the ICRC can challenge this based on its own history of using the Red Cross since the mid-19th century as also the fact that the Geneva Convention Act, 1960 prohibits the use of the symbol. The Indian Medical Association would then have to brace for a trademark battle at the courts or settle for a different emblem.

Prashant Reddy Thikkavarapu blogs at SpicyIP and is author of a book on intellectual property in India.

Corrections and clarifications: This story has been updated to explain the procedure related to no-objection certificates issued by Trademark Registry.

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