The Trade-marks Act (Canada) provides that no person shall adopt or use in connection with a business, as a trade-mark or otherwise, any mark consisting of or so nearly resembling as to be likely to be mistaken for, a mark that that is listed in section 9 of that Act.1
The list of "prohibited marks" includes, among others, certain marks given significance by virtue of the Geneva Conventions (the "Convention"), the treaties designed to set standards for international law for humanitarian concerns. Such prohibited marks include the international distinctive sign of civil defence2 (an equilateral blue triangle on an orange ground (see a.)), as well as the distinctive emblems and signs of the medical services of armed forces and related humanitarian relief societies3 (i.e. the International Committee of the Red Cross, the national societies thereof and their international federation (the "International Humanitarian Relief Movement")), including:
(i) the emblem of the Red Cross on a white ground (see b.), officially recognized in 1863 following the founding of the International Committee of the Red Cross, and used by the Canadian Red Cross Society;
(ii) the emblem of the Red Crescent on a white ground (see c.) adopted by a number of Islamic states and officially recognized in 1929; and
(iii) the sign of the Red Lion and Sun (see d.), formerly used by Iran (which since 1980 has adopted the Red Crescent), but still officially recognized under the Convention.
The Red Cross emblem (the inverse of the flag of Switzerland, a traditionally neutral state) was adopted as a non-partisan symbol and was intended to be the only such distinctive mark symbolizing the neutral status and the protection granted by international humanitarian law to armed forces' medical services and volunteers belonging to relief societies for wounded military personnel. However, the religious connotations of the cross as a symbol of Christianity led to issues of acceptance of the symbol in war zones in non-Christian regions; by the end of the nineteenth century the Red Crescent and the Red Lion and Sun were instead used by some countries and relief societies.4 All three symbols were eventually recognized by the Convention.
The officially recognized humanitarian relief "Red" symbols created difficulties for the International Committee of the Red Cross as the emblems are sometimes perceived as having particular religious or political connotations, which in turn undermined the precept that neutrality and impartiality are the cornerstone principles of the movement. Some countries and relief societies were slow to (or simply refused) to adopt any of the three Red emblems officially recognized by the Convention as being unsuitable.5 Over the years some countries unsuccessfully lobbied for official recognition of other emblems (e.g. a Red Cedar for Lebanon, a Red Star for Zimbabwe, a Red Wheel for India, and a Red Star of David, long used by Israel's national first aid society) that they believed may be more appropriate for their purposes.6
In a bid to address these concerns and to avoid territorialism by establishing a symbol that is intended to be devoid of any political, religious or other connotation, effective January 14, 2007 the Convention was amended to adopt an additional distinctive emblem, namely the Red Crystal (see e.). The amendment to the Convention provides that the Red Crystal can be used in two ways, namely in its pure form as a protective device (i.e. a visible sign of protection conferred by the Convention), or as an indicative device to show that a person is linked to the International Humanitarian Relief Movement.7 When used as an indicative device, the Red Crystal may be used in association with (or may have incorporated into the center of the Red Crystal) any or all of the Red Cross, the Red Crescent, the Red Lion and Sun or (as a concession to Israel, whose national first aid society Magen David Adom was officially admitted to the International Humanitarian Relief Movement together with the Palestine Red Crescent Society in June 20068) the Red Star of David (see f.), although that symbol is not otherwise officially recognized by the Convention.
The Red Crystal is not required to be used by any country or humanitarian society, but is required to be given equivalent treatment and protection by states adhering to the Convention. Consequently, on January 31, 2008 Bill C-61 came into force and amended, among other legislation, Canada's Trade-marks Act, to include the Red Crystal as a prohibited mark.9
The Canadian Red Cross Society Act was at the same time amended to make it a criminal offence punishable by a fine of $100 to $500 or imprisonment not exceeding one year to wear, use or display for the purposes of trade or business, for the purpose of inducing the belief that he or she is a member or representative of, or agent for, the Society or for any other purposes whatsoever, without the Society's written authorization, the Red Cross, the Red Crescent or the Red Crystal or any other word, mark, device or thing likely to be mistaken therefor.10
Therefore, businesses should be aware of the limitations proposed by the list of "prohibited marks" under section 9 of the Act in the process of: 1) choosing a new trade-mark for goods and services; 2) considering an existing trade-mark that is similar; or 3) looking to brand expansion of an existing trade-mark.