Traités, États parties et Commentaires
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Commentaire of 2016 
Article 53 : Misuse of the emblem
Text of the provision*
(1) The use by individuals, societies, firms or companies either public or private, other than those entitled thereto under the present Convention, of the emblem or the designation “Red Cross” or “Geneva Cross”, or any sign or designation constituting an imitation thereof, whatever the object of such use, and irrespective of the date of its adoption, shall be prohibited at all times.
(2) By reason of the tribute paid to Switzerland by the adoption of the reversed Federal colours, and of the confusion which may arise between the arms of Switzerland and the distinctive emblem of the Convention, the use by private individuals, societies or firms, of the arms of the Swiss Confederation, or of marks constituting an imitation thereof, whether as trademarks or commercial marks, or as parts of such marks, or for a purpose contrary to commercial honesty, or in circumstances capable of wounding Swiss national sentiment, shall be prohibited at all times.
(3) Nevertheless, such High Contracting Parties as were not party to the Geneva Convention of July 27, 1929, may grant to prior users of the emblems, designations, signs or marks designated in the first paragraph, a time limit not to exceed three years from the coming into force of the present Convention to discontinue such use, provided that the said use shall not be such as would appear, in time of war, to confer the protection of the Convention.
(4) The prohibition laid down in the first paragraph of the present Article shall also apply, without effect on any rights acquired through prior use, to the emblems and marks mentioned in the second paragraph of Article 38.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
United States of America: Reservation made on ratification[1]
Contents

A. Introduction
3065  Article 53 sets out a very broad prohibition on the use of the distinctive emblems, their designations, and imitations thereof, by a range of third parties.[2] The article also covers the arms of the Swiss Confederation and designs that may constitute imitations thereof. Such uses are prohibited regardless of their purpose and, in many cases, irrespective of their date of adoption.
3066  The prohibition set out under Article 53 applies at all times, that is, both in situations of armed conflict and in times of peace. Article 53 encompasses both misuse of the emblem in its protective sense and when used as an indicative sign,[3] even though no explicit distinction is drawn between these two types of use in the article. Although the gravity of misuse of the emblem in times of war cannot be doubted, it is recognized that misuse of the indicative sign in peacetime, such as for commercial purposes, serves to undermine its particular meaning and purpose.[4]
3067  In setting out such a strict prohibition on third-party use, Article 53 serves to reaffirm the special nature and status of the distinctive emblems. This status may be regarded as genuinely unique under international law.
3068  The terms of Article 53 vary from paragraph to paragraph, and, on a strict reading, may appear to be complex. However, national practice (in particular, available domestic legislation) shows that, generally, States afford similar levels of protection to all of the distinctive emblems set out in Article 53 and their designations, as well as, in many cases, to the Swiss emblem. Imitations of these signs are equally prohibited.
3069  Where instances of misuse of the emblems, designations and imitations by third parties occur, it is the responsibility of States, supported by National Red Cross and Red Crescent Societies (hereinafter ‘National Societies’) and the ICRC, to ensure that such abuses are appropriately addressed, in accordance with the present article and existing national legislation.
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B. Historical background
3070  The original Geneva Convention of 1864 had no provision dealing with the repression of infractions, and was also silent on the subject of abuses and misuses of the distinctive emblem. However, abuses of the red cross emblem, both in peacetime and during armed conflict, were apparent as early as 1866.[5] Partly owing to concerted efforts by the ICRC and National Societies to tackle such misuse,[6] the revised Geneva Convention of 1906 required States to ‘take or recommend to their legislatures’ measures necessary to prevent abuses of the emblem, in relation to both commercial use by third parties and wrongful use in times of war.[7]
3071  In 1929, the relevant provision was revised to form Article 28, which was new, of the updated Convention. The new article also prohibited use of the arms of the Swiss Confederation[8] and covered imitations of the red cross emblem and its designation, and those of the Swiss arms. The intention of the latter was to capture signs or names (primarily those used for commercial undertakings) that, while not exactly replicating the emblem or designation, would be so close in design as inevitably to create an association with them.[9] However, although the red crescent and red lion and sun emblems were newly recognized under the 1929 Convention, they were not included in Article 28, meaning that States were under no international obligation to prohibit their improper use. Those States that used one of these alternate signs could ensure their protection in their territories under domestic laws. In addition, a separate article covering misuse in wartime was not retained in the 1929 Convention, leading to a misperception that Article 28 applied to commercial abuses only.[10]
3072  In 1949, the text of Article 28 was revised and incorporated into two separate provisions, Articles 53 and 54 of the First Convention. While Article 53 retained and developed the various abuses mentioned in Article 28, the requirement to take necessary measures to prevent and repress these acts was moved to Article 54.[11]
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C. Unique nature of protection
3073  In proscribing, in very broad terms, the use of the distinctive emblems (as well as use of the arms of the Swiss Confederation, relevant designations, and imitations) by any, other than those entitled to use them, Article 53 serves to reinforce the special purpose and unique status of these signs. There are some other internationally recognized symbols that enjoy a certain level of protection under specific international agreements or resolutions. For example, under international humanitarian law, there are other signs designated for specific purposes (such as to protect cultural property in armed conflict),[12] the use of which may also be restricted by national legislation. In addition, use of the emblem and flag of the United Nations is restricted,[13] and the UN General Assembly has recommended the implementation of national measures to prevent its unauthorized use.[14] However, the very wide prohibition on the use of the distinctive emblems by third parties set out under Article 53, coupled with the positive obligation of States, established in Article 54, to take appropriate national measures to repress instances of abuse and misuse, constitutes a level of protection over and above that afforded to other internationally recognized signs.[15] The prohibition is wide enough to cover such use wherever it may occur and in whatever form. For example, while this could not have been foreseen at the time of drafting, the prohibition extends to unauthorized use of the distinctive emblems, their designations, and imitations thereof in the digital sphere and on the internet. It is the responsibility of States to ensure that private and/or commercial organizations uphold the restrictions set out in Article 53.
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D. Discussion
1. Paragraph 1: Red cross emblem, related designations, and imitations
3074  Article 53(1) covers the use of the red cross emblem and the designations ‘Red Cross’ and ‘Geneva Cross’, as well as imitations of these. While many national laws refer both to the red cross emblem and to the designation ‘Red Cross’ in conformity with this paragraph, it does not appear that a great number explicitly prohibit the use of the designation ‘Geneva Cross’.[16] Many national laws also prohibit the use of imitations of the red cross emblem, as well as imitations of the designation ‘Red Cross’. It is for each individual State to determine those signs that may constitute an imitation of the emblem or of related designations. Particular formulations may be included in the national legislation itself.[17] In addition, in some countries the question of which designs or wording may constitute an imitation in their territory has arisen in their national case law.[18] The observance of these rules in practice is further considered in section E below.
3075  The prohibition set out in the first paragraph also applies to the red crescent and red lion and sun emblems (by virtue of Article 53(4)) and to the red crystal emblem (by virtue of Article 6 of Additional Protocol III). However, there are some important differences in application, in particular concerning the issue of prior use of the latter emblems, which are addressed below in section D.4.
3076  This paragraph also sets out categories of third parties for whom the use of the emblem and related designations is prohibited, namely ‘individuals, societies, firms or companies either public or private, other than those entitled thereto under the present Convention’. These categories are intended to be exhaustive, rather than restrictive: in effect, the use of the emblem is forbidden to everyone not authorized by the Convention.[19] This view was confirmed by delegates to the 1949 Diplomatic Conference, who considered that the prohibition on use set out in Article 53 was ‘rendered absolute’.[20] In general, national laws giving effect to Article 53 follow this interpretation: rather than identifying the specific persons or bodies unable to use the emblem, designations and related signs, the prohibition extends to all individuals and entities not explicitly entitled to do so under Article 44.[21]
3077  Article 53(1) prohibits the use of the red cross emblem and related designations ‘whatever the object of such use’. This means that the emblem or related designations cannot be used, except as provided for in the Convention,[22] for any reason, however commendable, including for any other humanitarian purpose. The phrase effectively prevents any arguments being brought by unauthorized users that their use of the emblem or designations is justified, either because there was no intention to represent the true purpose of the emblem[23] or because the use is for a purpose similar to that of the emblem.[24]
3078  The prohibition set out in the first paragraph of Article 53 applies irrespective of when the sign in question was adopted. This means that the provision must be given effect, even where the use of the red cross emblem, the related designations, or an imitation of these by an individual or entity preceded the coming into force of the Convention. Similar wording was included in the 1906 and 1929 Geneva Conventions. Indeed, the retroactive application of this and other earlier provisions has consistently been considered important in ensuring that the emblem and designations maintain their special meaning and unique status. The application of Article 53 to prior existing signs is tempered by the exception set out in Article 53(3), discussed in section D.3.
3079  Lastly, Article 53(1) stipulates that the prohibition applies ‘at all times’. This includes all instances of use of the emblem, whether in peacetime or in situations of armed conflict.[25] Many, although not all, national laws on the use of the emblem distinguish between peacetime and situations of armed conflict,[26] and may provide for different penalties depending on whether the misuse occurred in one or the other context.[27] While the consequences of improper use of the emblem in situations of armed conflict may be particularly serious,[28] protection of the emblem in peacetime is also important, in order to ensure that its special meaning and purpose is well understood, respected and not undermined.[29]
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2. Paragraph 2: The arms of the Swiss Confederation
3080  Article 53(2) prohibits use of the arms of the Swiss Confederation (hereinafter ‘the Swiss emblem’), as well as imitations of the Swiss emblem.[30] First added in 1929, the provision makes it clear that such protection is warranted owing to the reversal of the colours of the Swiss emblem in the red cross emblem, and in order to avoid any adverse consequences for the respect owed to the red cross emblem that might result from misuse of the Swiss emblem. Confusion between the red cross emblem and the Swiss emblem can, in particular, arise where companies or individuals seek to exploit the resemblance between the two emblems in order to mislead the public.[31] Consequently, the paragraph both reinforces the ‘compliment to Switzerland’ set out under Article 38 of the Convention, and, in providing an additional, albeit indirect, means of protection for the red cross emblem, adds to the special status of the red cross emblem. Use of the Swiss emblem is explicitly prohibited by a great number of countries, often as part of their national legislation on the use of the distinctive emblems.[32]
3081  When compared with other national flags or armorial bearings, the protection afforded to the Swiss emblem under Article 53 may be regarded as unique in international law. Other treaties provide some measure of protection for countries’ national flags or symbols: for example, to protect their unauthorized use for commercial purposes[33] or, indirectly, to prevent their desecration.[34] In addition, States may prevent unauthorized use of their flags or national symbols and/or prohibit their desecration (as well as that of foreign flags) under national legislation.[35] However, the Swiss emblem is the only national marking to be protected specifically under international humanitarian law.[36]
3082  Article 53 prohibits use of the Swiss emblem or imitations thereof as trademarks or commercial marks (or parts of such marks),[37] as well as for purposes ‘contrary to commercial honesty’. While there is no commonly agreed interpretation of this phrase, in general, it may be understood as referring to misleading or deceptive practices in a commercial context aimed at creating a false impression or belief about an entity, product or service.[38] Aside from its use in commercial contexts, the provision also prevents use of the Swiss emblem in circumstances ‘capable of wounding Swiss national sentiment’. There is little evidence as to how this aspect of Article 53 may be interpreted in practice, although somewhat similar provisions under recently amended Swiss national laws refer to use that is ‘contrary to morality or convention or against current law’: this notion may arguably also encompass the wounding of national sentiment.[39]
3083  Read strictly, Article 53 does not provide for as wide a prohibition on the use of the Swiss emblem as that afforded the red cross emblem.[40] The second paragraph refers for the most part to commercial use of the Swiss emblem (except as set out above). Despite the somewhat restrictive language of this provision, in practice a number of States that explicitly prohibit the use of the Swiss emblem in their national legislation do so on a basis similar to that which applies to the distinctive emblems.[41] In addition, it would seem that, in practice, where misuse of the Swiss emblem occurs in contravention of Article 53, it is often in a commercial context.[42]
3084  In practice, National Societies may work with the Swiss Embassy in their respective countries, where relevant, to address reported misuses of the Swiss emblem in their territories.[43] In the case of companies registered in Switzerland, the use of Swiss national markings on products and for services is regulated by Swiss federal law.[44] The Swiss Government has indicated that, even where such use is not contrary to this legislation, it may still be prohibited where it would constitute a violation of Article 53.[45]
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3. Paragraph 3: Prior users
3085  Article 53(3) sets out an exception to the prohibition on the use of the red cross emblem, related designations, and imitations established in paragraph 1. At the time of adoption of the 1949 Geneva Conventions, it was agreed that, for those States that were already party to the 1929 Geneva Convention, the provisions prohibiting the misuse of the red cross emblem and the Swiss emblem would take effect immediately (given that the 1929 Convention had already prohibited such use).[46] For countries that were not party to the 1929 Convention, a grace period of three years could be granted to prior users of the red cross, related designations, or imitations thereof.[47] This would allow sufficient time for these States to enact and enforce national measures to prevent use of the red cross emblem, and for prior users to make the changes necessary to discontinue such use. The exception applies from the date that the Convention enters into force for a particular State.[48] Importantly, however, the three-year grace period cannot be granted where the use of the red cross emblem would appear to confer the protection of the Convention in situations of armed conflict.[49]
3086  It is not possible to determine the extent to which the exception for prior use of the red cross emblem, related designations, and imitations thereof has been utilized by States in practice. However, an examination of national legislation suggests that few countries make special provision for prior use of these signs.[50] One notable exception is the United States, which made a reservation on ratification of the 1949 Geneva Conventions concerning Article 53, to the effect that any use of the red cross emblem within its jurisdiction prior to 1905 would not be made unlawful within its territory, provided that such use ‘does not extend to the placing of the Red Cross emblem, sign, or insignia upon aircraft, vessels, vehicles, buildings or other structures, or upon the ground’.[51]
3087  Consequently, rather than granting a grace period to prior users, third parties in the United States using the red cross emblem or related designations prior to 1905 would be able to continue such use, provided that such use would not lead to confusion with the emblem or designations as a protective device.[52] It is estimated that, of approximately 20 companies or other entities in the United States considered to be ‘approved users’ of the red cross emblem prior to 1905, half of these continue to use the red cross emblem today.[53] In general, while the use of the red cross emblem or designations by those not entitled to do so under Article 44 cannot be considered as helpful, it would appear that such third-party use is sufficiently limited in the United States so as not to have had a generally negative impact on matters of emblem protection in that territory.[54]
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4. Paragraph 4: Other distinctive emblems
3088  Article 53(4) stipulates that the ‘emblems and marks mentioned in the second paragraph of Article 38’ are prohibited from use, along the same lines as those set out in paragraph 1. In spite of the mention of ‘marks’, as well as ‘emblems’, it is clear that this paragraph refers to the emblems of the red crescent and the red lion and sun, as set out in Article 38(2).
3089  This paragraph was a new insertion in the 1949 text of the present Convention. Prior to 1949, the red crescent and red lion and sun were protected under national law in the countries which used them instead of the red cross. However, there was no obligation for other States to do the same. By virtue of this paragraph, the unlawful use of these two alternative emblems is now prohibited in all States party to the Convention.[55]
3090  As paragraph 4 refers back to paragraph 1, the prohibition on the use of the red crescent and red lion and sun emblems also includes imitations of these signs. However, paragraph 4 differs from paragraph 1 in one essential respect. That is, the prohibition concerning the two alternative emblems does not affect any rights acquired through prior use; it applies only to those who claim the right to use the emblems after the Convention has come into force.[56]
3091  An examination of relevant national legislation suggests that a great number of domestic laws extend protection to the red crescent and red lion and sun emblems (in spite of the latter no longer being in use)[57] similar to that afforded the red cross emblem.[58] This means that not only are imitations of these emblems covered, but in many cases also the designations ‘Red Crescent’ and ‘Red Lion and Sun’, as well as imitations of these. Given that Article 53(4) is in fact silent as to whether it is also prohibited to use these designations, such national practice shows that, in many cases, States have adopted an expansive interpretation of this provision.[59] By the time Additional Protocol III was adopted in 2005, the designations ‘red crescent’ and ‘red lion and sun’ were understood as having the same protection as the other designations set out in Article 53(1).[60]
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E. National implementation of Article 53
3092  Available national practice on Article 53 suggests that, although implementation varies greatly from country to country, the provision is generally applied in practice. As indicated above, a great number of States have enacted legislation giving effect to Article 53, often in more expansive terms than those of the provision itself. As mentioned previously, national legislation normally prohibits both commercial misuse of the emblems and wartime abuses. Where misuse of the emblem occurs, it is often perpetrated by entities and individuals within the medical, health and first-aid sectors, suggesting that a great many instances stem from a wrong understanding of the true meaning of the distinctive emblems.[61] There is also a particular risk of misuse of the indicative sign or National Society logo, name, or imitation thereof, for fraudulent purposes. This may be the case, for instance, in attempts to divert funds intended for Movement components in support of their humanitarian activities.
3093  Many National Societies play a key role in supporting their governments’ implementation of Article 53.[62] The ICRC may also assist in these efforts, where required, in order to build national capacity.[63] The International Federation of Red Cross and Red Crescent Societies may assist too, when requested. Such a role is normally carried out by instigating a dialogue with each alleged misuser. The experience of a number of countries indicates that the implementation of Article 53 through legal action is a rarity;[64] most of the time, on being contacted by the National Society, the misuser will agree to cease use of the emblem, designation or imitation thereof.[65] While this outcome is positive and preferable, from the perspective of emblem protection, it may in fact be useful for court proceedings to be initiated, where required, in order to raise awareness of the significance of the emblems and of the legal restrictions on their use. Such actions would also demonstrate publicly the will of States to give effect to their international and domestic legal obligations.
3094  National Societies may also encourage adherence to Article 53 by conducting awareness-raising campaigns on the true meaning of the distinctive emblems and the restrictions on their use within their territories.[66]
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Select bibliography
ICRC, Study on the Use of the Emblems: Operational and Commercial and Other Non-Operational Issues, ICRC, Geneva, 2011.
Leach, Leslie, ‘Nepal Red Cross Society: Emblem Protection Campaign Review’, report produced by the Nepal Red Cross Society and the ICRC, February 2007.
Meyer, Michael A., ‘Protecting the emblems in peacetime: The experiences of the British Red Cross Society’, International Review of the Red Cross, Vol. 29, No. 272, October 1989, pp. 459–464.

1 - United Nations Treaty Series, Vol. 213, 1955, pp. 378–381. See fn. 51 below for the text of the reservation.
2 - These ‘third parties’ include ‘individuals, societies, firms or companies either public or private, other than those entitled thereto under the present Convention’, as set out under the first paragraph of the article.
3 - See the commentary on Article 44, sections C and D, in regard to protective and indicative uses.
4 - Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 385.
5 - For specific examples of such abuses, see ibid. p. 381.
6 - For example, the 3rd International Conference of the Red Cross (Geneva, 1884) recommended that ‘energetic legislative or similar measures be taken, in all countries, to prevent abuse of the emblem of the Convention, the red cross on a white ground, in time of peace as in time of war’. A similar resolution was adopted by the 4th International Conference (Karlsruhe, 1887). See Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 381. Such efforts by the components of the International Red Cross and Red Crescent Movement, in cooperation with States, continue today.
7 - Geneva Convention (1906), Articles 27 and 28. The 1906 Convention forbade misuse of the emblem for both protective and indicative purposes, although at the time no conscious distinction had yet been drawn between the two uses. It should be noted that efforts to address abuses of the emblem in wartime had been made as early as 1899, through the forbidding of ‘improper use of … the distinctive badges of the Geneva Convention’ in Article 23 of the 1899 Hague Regulations, and in the same article of the revised 1907 Hague Regulations. See Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 382.
8 - It is reported that, in order to circumvent the prohibition on the use of the red cross emblem in the 1906 Geneva Convention, the white cross on a red ground was increasingly used for commercial purposes, in an attempt to take advantage of the similarity between it and the red cross emblem. See Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, pp. 382–383.
9 - Commercial undertakings, prevented after 1906 from making use of the emblem without risk of prosecution, devised signs which could not be said to be the red cross, but gave the impression that they were. This enabled them to claim for their products, with impunity, at least some of the prestige attaching to the emblem. Examples included a red cross with a figure or another cross superimposed; a cross which had only the outline or part of it in red; backgrounds of different colours; a cross half red and half white on a ground in which the two colours were reversed; and a red star which from a distance looked like a cross. Such practices, harmful to the emblem and to the organization, had to be eliminated.
10 - Although Article 28 of the 1929 Geneva Convention on the Wounded and Sick stipulated that States were to prevent such abuses ‘at all times’, confusion arose from the explicit mention of commercial purposes in the article (even though the provision also referred generally to ‘any other purposes’). It was reported in 1952 that, where national legislation had been introduced to give effect to the 1929 obligations, ‘it generally covers commercial abuses only’. See Pictet, (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 381.
11 - See the commentary on Article 54.
12 - The cultural property emblem, adopted by the 1954 Hague Convention for the Protection of Cultural Property, consists of ‘a shield, pointed below, per saltire blue and white’ (Article 16(1)).
13 - Use of the emblem of the United Nations is restricted by UN General Assembly resolution 92(1) of 7 December 1946, as well as by internal regulations issued by the UN Secretariat. Use of the UN flag is regulated by the UN Flag Code and Regulations, issued by the UN Secretary-General. Article 38(2) of Additional Protocol I prohibits the use of the ‘distinctive emblem of the United Nations, except as authorized by that Organization’.
14 - Paragraph 2(a) of UN General Assembly resolution 92(1) of 7 December 1946 recommends that Members of the UN take such legislative or other appropriate measures as are necessary to prevent unauthorized use of the emblem, the official seal and the name or initials of the UN, in particular for commercial purposes. Unauthorized use of the UN emblem is also prohibited under the domestic law of some States, e.g. Sweden and Switzerland.
15 - For example, Article 53 not only prohibits the use of the red cross emblem and related designations, but also the use of imitations thereof. In addition, parts of Article 53 have, in effect, retroactive application (see para. 3078).
16 - Some of the countries that do explicitly refer to the designation ‘Geneva Cross’ in their relevant legislation are Belgium, Canada, Nigeria, Sweden, Switzerland, the United Kingdom, the United States and Uruguay. While the term ‘Geneva Cross’ is a synonym of the designation ‘Red Cross’, its use in practice is less common than the latter term (in addition, there are no recorded cases concerning improper use of ‘Geneva Cross’).
17 - For example, a number of countries with a Geneva Conventions Act, including Australia, Barbados, India and the United Kingdom, define imitations of the distinctive emblems or designations as being designs or wording ‘so nearly resembling [any of the emblems or designations] as to be capable of being mistaken for … or understood as referring to, one of those emblems’. Other countries use wording such as a ‘colourable imitation’ or similar (Malaysia, United States), or refer to use of the emblems or designations that is intended to ‘generate confusion or a deception’ (Italy). In its Study on the Use of the Emblems, p. 309, the ICRC sets out the following recommendations regarding imitations: 1. Imitation is a form of misuse of the emblem or the name, that is, the use of a sign or designation that, owing to its shape and/or colour or title, may be confused with the emblem or its name. 2. The criterion for deciding if a given mark constitutes an imitation should be whether there is a risk of confusion in the public mind between that mark and the emblem or its name. This test should be interpreted in the manner most favourable to the [Geneva Conventions] and the emblem (and/or name). The Study also helpfully sets out various examples both of signs and of wording that would constitute such an imitation. See ICRC, Study on the Use of the Emblems: Operational and Commercial and Other Non-Operational Issues, Geneva, 2011, p. 312.
18 - For example, in 1994 the German Federal Court of Justice ruled that a commercial ambulance service may not use a design of a red/brown emblem on an ivory or darker ground, for the following reasons: the contested sign would usually bring to mind the red cross emblem; similarities between the sign and the red cross emblem would largely outweigh differences; the impression would be of a stylized and modernized emblem. Germany, Federal Court of Justice, German Red Cross case, Judgment, 1994. See also Switzerland, Federal Tribunal, A. SA v. Swiss Red Cross, Judgment, 2014.
19 - Those persons and entities entitled to such use are set out under Article 44 of the First Convention, and include, first and foremost, authorized medical establishments, units, personnel and material, as well as National Red Cross or Red Crescent Societies (within certain limits) and the international Red Cross organizations. The international Red Cross organizations are the ICRC and the International Federation of Red Cross and Red Crescent Societies. Article 44 also allows the emblem to be used, as an exceptional measure, to identify a third-party aid post or ambulance exclusively assigned to the purpose of giving free treatment to the wounded and sick, with the express permission of the relevant National Red Cross or Red Crescent Society. For further discussion of the persons and entities authorized to use the distinctive emblems, see the commentary on Article 44. Other Geneva Conventions and the Additional Protocols also contain provisions on emblem use. For example, Article 8 of Additional Protocol I extends such use to authorized civilian medical personnel, hospitals and units.
20 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 199.
21 - A number of national laws use text formulations that refer broadly to ‘all’ or ‘any’ persons and/or entities being subject to the prohibition under Article 53, with those entitled to use the emblem under Article 44 listed as exceptions. See e.g. Germany, Code of Administrative Offences, 1968, Article 125 (Use of the Red Cross or the Swiss heraldic bearing); Namibia, Red Cross Act, 1991, Article 3; Poland, Penal Code, 1997, Article 126; and United States, Geneva Distinctive Emblems Protection Act, 2006 section 706a. Additionally, in practice it appears to be immaterial as to whether a reported misuser is able to be identified as belonging to one of the categories of third parties set out under Article 53(1). If the individual or entity is not an authorized user as set out under Article 44, they are generally regarded as unable to use the red cross emblem, related designations, or imitations thereof.
22 - Although Article 53(1) refers to the present Convention, in effect the emblem may only be used as provided for in the four Geneva Conventions and their Additional Protocols.
23 - For example, in 1979, the Supreme Court of the Netherlands rejected an argument by the accused that he had not ‘made use’ of the protected emblem, since it had not been ‘used in such way that it has some significance or fulfils some function’. The Court ruled that the use of the red cross emblem by the accused, regardless of intent, was sufficient to violate the relevant national law. The Netherlands, Supreme Court (Minor Offences Division), In re Ernest case, Judgment, 1979.
24 - For example, a number of agencies or organizations involved in humanitarian pursuits or the delivery of aid have in practice made improper use of the red cross emblem or an imitation thereof, normally because of a misunderstanding that the emblem constitutes a symbol of general humanitarian assistance or perhaps in an effort to benefit from the protection the emblem represents.
25 - The prohibition in Article 53 applies to all uses of the emblem and related designations, whether as a protective sign or in an indicative sense, both in strict form (i.e. a red cross of arms of equal length on a white ground) and as an imitation.
26 - For example, abuses of the distinctive emblems, their designations or other protected signs occurring in situations of armed conflict (whether by military personnel or by civilians) should normally be included in relevant legislation covering violations of the laws and customs of war. Unauthorized use in peacetime may be dealt with under a country’s criminal code or similar legislation. Some countries, in particular those protecting the emblem through the laws establishing the National Red Cross or Red Crescent Society, e.g. Antigua and Barbuda, Belize, Brunei Darussalam, Jamaica and Lesotho, do not distinguish between peacetime and situations of armed conflict.
27 - See the commentary on Article 54, section C.3.
28 - For example, Article 85(3)(f) of Additional Protocol I identifies the perfidious use of the distinctive emblem as a grave breach of the Protocol (when committed wilfully and causing death or serious injury). In addition, under Article 8(2)(b)(vii) of the 1998 ICC Statute, ‘[m]aking improper use … of the distinctive emblems of the Geneva Conventions’ constitutes a war crime in international armed conflict, where such use results in death or serious personal injury. For those countries that are party to the ICC Statute, such improper use is therefore punishable as a war crime in their territories.
29 - In 2007, the Oslo District Court in Norway ruled that a dental clinic using an imitation of the red cross emblem to mark its offices had violated the prohibition in the Norwegian Criminal Code on the unlawful use of any sign or name designed to be used in connection with aiding the wounded and sick in time of armed conflict. In reaching its decision, the Court recalled that the purpose of the red cross emblem was to provide protection in armed conflict, and that its misuse in peacetime could undermine respect for it in wartime. Norway, District Court of Oslo, Bogstadveien tannlegevakt case, Judgment, 2007.
30 - The Swiss emblem consists of a white cross, with arms of equal length, on a red ground.
31 - Prior to this prohibition being introduced in 1929, the Swiss emblem or imitations thereof were increasingly used by third parties to create an association with the red cross emblem (the use of which was already regulated), in particular for commercial purposes. In practical terms, there are many modern examples of third parties, who are normally unaware of the relevant legal provisions, attempting to use the Swiss arms or imitations for the same effect.
32 - Examples of countries explicitly prohibiting use of the Swiss emblem in their legislation on emblem use include Australia, Austria, Belgium, Bolivia, Cambodia, France, Germany, India, Mauritius, Sri Lanka, the United Kingdom and the United States.
33 - Article 6ter(a) of the 1883 Paris Convention for the Protection of Industrial Property prohibits the commercial use, not authorized by the competent authorities, of State flags and emblems.
34 - Article 22(2) of the 1961 Vienna Convention on Diplomatic Relations places a State under a special duty to protect the premises of foreign missions on its territory against intrusion or damage and to prevent disturbances of the peace or impairment of the dignity of such missions. This could include measures to prevent or repress the desecration of foreign States’ flags or other symbols.
35 - For example, and of most relevance here, Switzerland has federal legislation regulating the use of its flag and coat of arms for commercial purposes (a number of Swiss brands use the Swiss emblem on their products as a guarantee of quality and an indication of source). See fn. 39.
36 - It may be noted that Additional Protocol I also prohibits making use of the emblem of the United Nations and, more generally, of the flags of neutral or other States that are not Parties to the conflict (Articles 37–39).
37 - While the provision refers to both ‘trademarks’ and ‘commercial marks’ (and parts of such marks), the relative meaning of these terms, if any, will in practice depend on the relevant national laws. For example, under French law, a trademark refers to the mark of the manufacturer or producer of the product, while a ‘commercial mark’ refers to the mark of the distributor of the product. They should also be protected under copyright law.
38 - In general, it will be for individual States to determine which acts or practices are undertaken for purposes contrary to commercial honesty. Such practices may include those aimed at misleading consumers, as well as those generating unfair competition with other commercial entities. Practical examples might include, for instance, wrongful use of the Swiss emblem on foodstuffs or other products with the intention of showing that they have been medically tested or are otherwise related to health. Some national laws prohibiting use of the Swiss emblem (in particular those taking the form of a Geneva Conventions Act) do not identify the specific purposes of such use.
39 - In explaining this aspect of the amendment, the Swiss Government states that the use of the Swiss cross may be considered offensive if it is capable of wounding large portions of the Swiss population or when it lacks respect for the population as a whole. However, these interests need to be balanced against freedom of expression and artistic freedom. See Switzerland, Federal Council, ‘Message relatif à la modification de la loi sur la protection des marques et à la loi fédérale sur la protection des armoiries de la Suisse et autres signes publics (Projet “Swissness”) du 18 novembre 2009’ (‘Message concerning the amendment of the Trademark Protection Act and the Federal Act on the Protection of Swiss Coats of Arms and Other Public Insignia (‘Swissness’ Project) of 18 November 2009’), Feuille fédéral, No. 50, December 2009, pp. 7711–7846, at 7806.
40 - It would not have been possible to impose a general prohibition on use, in part because Swiss citizens and entities are permitted to use the Swiss emblem for a variety of purposes. In addition, it is interesting to note that, unlike the first paragraph of Article 53, which refers to the use of the red cross emblem, related designations, and imitations by ‘individuals, societies, firms or companies either public or private’, the second paragraph appears to focus primarily, or perhaps wholly, on use by ‘private individuals, societies or firms’. The reason for the lack of an explicit reference to public entities in the second paragraph is unclear: one possibility may be that the drafters were primarily concerned with private, commercial misuse of the Swiss arms (of which there was much practical evidence), and did not envisage similar misuse by entities of a public nature.
41 - This appears to be more likely in those countries that have a Geneva Conventions Act, such as Australia, India, Malaysia and the United Kingdom.
42 - Commercial misuse of the Swiss emblem by third parties often occurs in a context similar to that of misuse of the red cross emblem (e.g. primarily for medical, first-aid or health-related products, as well as a variety of other circumstances). However, some charities and other non-commercial entities may also misuse the Swiss emblem, often as an indirect reference to the red cross emblem.
43 - For example, in the United Kingdom, where a misuse of the Swiss emblem or an imitation arises, the British Red Cross Society often consults the Swiss Embassy to obtain its view as to whether the user should be approached. If the individual or company is not authorized to use the Swiss emblem under relevant Swiss federal provisions, the misuse will normally be taken up by the British Red Cross.
44 - The Federal Law on the Protection of Coats of Arms and Other Public Insignia was revised in 2013 (Switzerland, Public Insignia Law, 1931, as amended). Previously, the Law did not allow for the use of the ‘Swiss cross’ (to be differentiated from the ‘Swiss coat of arms’ – a Swiss cross in a triangular shield – which is subject to much stricter control) on products, but only in relation to services, although this provision was not widely enforced. The revised Law permits the use of the Swiss cross on products as well as services, although such use is subject to strict conditions set out in the 2008 Federal Law on the Protection of Trademarks and Indications of Source.
45 - That is, where such use would be abusive or offensive or create confusion with the red cross emblem. See Switzerland, Federal Council, ‘Message’, fn. 39, pp. 7820–7821. The Swiss Federal Institute of Intellectual Property regularly addresses instances of misuse of the Swiss arms by virtue of Article 53.
46 - That is, the provision would take effect on the date that the Convention entered into force for each country.
47 - No such exception was granted to prior users of the Swiss emblem: the improper use of national flags and markings was already prohibited under other treaties (e.g. the 1883 Paris Convention for the Protection of Industrial Property) and, in many countries, national legislation.
48 - As written, the provision is unclear as to whether it was intended that the three-year grace period would begin from the original entry into force of the Convention (i.e. six months after the first two instruments of ratification had been adopted, in accordance with Article 58(1) – which occurred on 21 October 1950), or from the date that the Convention entered into force for each individual ratifying State (in accordance with Article 58(2)). Practicality and State sovereignty would suggest that the grace period should run from the time that the Convention enters into force for an individual State, in order to allow sufficient time for national measures to be imposed and for prior users to bring their products or services into line with the provision.
49 - For example, the grace period could not be granted to a doctor’s surgery using a large red cross emblem to identify its premises, as this could easily be confused with the protective sign used in armed conflicts. In contrast, a small company using the red cross emblem as part of its logo could, depending on the particular circumstances, be granted a grace period to make necessary changes to the design.
50 - One exception is the Syrian Arab Republic, which prohibits the use of the red cross and red crescent emblems by unauthorized parties. Article 8 of its 2005 Emblem Law stipulates the following for prior users: ‘Persons having breached provisions of this law shall be given an interim period of six (6) months to adjust their situation, starting from the date of the issuance of the law. If this period expires, penalties provided for in this law shall be applicable to persons having committed the breaches.’ The six-month interim period applies to users of either the red cross or the red crescent emblem.
51 - The full text of the relevant paragraph of the reservation reads: The United States in ratifying the Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field does so with the reservation that irrespective of any provision or provisions in said convention to the contrary, nothing contained therein shall make unlawful, or obligate the United States of America to make unlawful, any use or right of use within the United States of America and its territories and possessions of the Red Cross emblem, sign, insignia, or words as was lawful by reason of domestic law and a use begun prior to January 5, 1905, provided such use by pre-1905 users does not extend to the placing of the Red Cross emblem, sign, or insignia upon aircraft, vessels, vehicles, buildings or other structures, or upon the ground. The reservation refers to pre-1905 use because in that year the American Red Cross received a revised official charter from Congress, strengthening the rules relating to the use of the red cross emblem by entities other than the National Society (in 1948 this section of the Charter was removed, and a revised version was placed in the US Criminal Code). See http://www.redcross.org/about-us/history/federal-charter.
52 - The ‘placing of the Red Cross emblem, sign, or insignia upon aircraft, vessels, vehicles, buildings or other structures, or upon the ground’, as set out in the US reservation, is an action normally associated with the use of the emblem as a protective device in situations of armed conflict. See fn. 53 regarding the request for prior users (such as the Red Cross Shoe brand) to cease using the emblem or name for commercial purposes during the Second World War.
53 - One such prior user is the shoe company Nine West, which acquired the United States Shoe Corporation, the maker of the ‘Red Cross shoe’, in 1995. By 1939, the Red Cross Shoe brand had become the most popular shoe brand in the United States. At the request of President Roosevelt, in the 1940s the brand replaced the words ‘Red Cross’ with ‘Gold Cross’, owing to the potential for confusion with the red cross emblem (in the context of the widespread use of the emblem as a protective device during the Second World War) and with the wartime activities of the American Red Cross. It resumed its use of the name ‘Red Cross Shoes’ in 1948. Other companies considered to be approved pre-1905 prior users include Cargill, Inc. (Red Cross salt, dating from 1895), Gonzo products (Red Cross Nurse Disinfectant, dating from 1902) and several pharmacies. When a company acquires a brand that is considered a prior user, the right to use the emblem is transferred to the new owner. However, the use is restricted to the product or brand that originally owned the right.
54 - While an outcome of historical circumstances in the United States, any such use of the emblem or designations by third parties is far from ideal. This was demonstrated in 2008 when Johnson & Johnson, a pre-1905 user of the red cross emblem on some of its products, filed a complaint against the American Red Cross concerning the licensing by the American Red Cross of its brand (including its name and the red cross emblem) to four third-party companies for use on certain products. The basis of the claim was unfair commercial competition. While the Court eventually found in favour of the American Red Cross, it is regrettable that the circumstances leading to this case, i.e. the use of the emblem in a commercial context by both Johnson & Johnson and the American Red Cross, occurred at all. See United States, Johnson & Johnson case, Opinion and Order, 2008.
55 - In countries that are predominantly Muslim but which make use of the red cross as the emblem of their armed forces medical service and as the indicative sign of their National Society, the issue has arisen of other organizations, businesses or other third parties wishing to display or use a red crescent. The unlawful use of the red crescent emblem by any third-party or humanitarian organization in such contexts should be duly addressed, mindful of the confusion such use is liable to cause. This is in particular the case where there is a risk of confusion with the National Society in the country, which could undermine the Movement’s Fundamental Principle of unity, which prescribes that there ‘can only be one Red Cross or one Red Crescent Society in any one country’.
56 - The question of whether the prohibition on the use of the red crescent and red lion and sun emblems should apply to prior users proved to be particularly controversial during the negotiations on this provision. In order for consensus to be reached, the Turkish delegation suggested the caveat on prior use, which it said must be understood ‘in the widest possible sense’. See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 240. This exception for prior use of the red crescent and red lion and sun emblems is reflected in a number of States’ domestic laws on emblem use. For example, for those countries with a Geneva Conventions Act, there is normally a provision stipulating that persons who used the red crescent or red lion and sun emblem as a registered trademark or on commercial products prior to the Act’s coming into force are exempt from the prohibition on use. See e.g. Australia, Geneva Conventions Act, 1957, as amended, section 15(5), and Kiribati, Geneva Conventions Act, 1993, section 9(4).
57 - That said, some national laws on emblem use extend such protection to the red cross and red crescent emblems only, and do not include reference to the red lion and sun emblem. See e.g. Cambodia, Red Cross or Red Crescent Emblem Law, 2002; Morocco, Emblem Law, 1958; Poland, Penal Code, 1997; South Africa, Emblem Act, 2007; and Turkmenistan, Emblem Law, 2001. Many of these laws (although not all) were promulgated after the date by which the red lion and sun emblem ceased to be used in practice.
58 - Examples of States extending similar protection to all of the distinctive emblems include Australia, Canada, Germany, Estonia, Indonesia, Israel (which also extends protection to its own emblem, the Red Shield of David), Singapore, Sri Lanka and the United Kingdom.
59 - For those States that have ratified Additional Protocol III, their national legislation should also prohibit use of the red crystal emblem, the designations ‘red crystal’ and ‘third Protocol emblem’, and imitations thereof, in accordance with Article 6(1) of that Protocol. Article 6(2) allows an exception to be granted to prior users of the red crystal emblem or related designations, similar to the exception provided for prior users of the red crescent and red lion and sun emblems in Article 53(4) of the present Convention. It should be noted that, while Article 2(1) of Additional Protocol III designated the additional emblem as the ‘third Protocol emblem’, the 29th International Conference of the Red Cross and Red Crescent decided that the additional emblem would be designated as the ‘red crystal’ (29th International Conference of the Red Cross and Red Crescent, Geneva, 2006, Res. 1, para. 2). This somewhat unusual procedure is an illustration of the fact that States attend the International Conference in their capacity as States party to the 1949 Geneva Conventions, and also demonstrates the close links between the International Conference and international humanitarian law.
60 - Article 6(1) of Additional Protocol III requires States Parties to take measures necessary to prevent and repress any misuse of the emblems mentioned in Articles 1 and 2 of the Protocol, as well as their designations.
61 - On this point, Meyer comments that ‘[i]n countries like the United Kingdom which for the most part have been spared armed conflict for the past 40 years, the red cross emblem has frequently become closely identified with first aid and with general health or medical care, its primary and unique meaning during armed conflict often being forgotten or unknown. For this reason it is perhaps particularly important for National Societies in such countries to help the authorities monitor unauthorized uses or misuses of the emblems’ (Meyer, p. 459). In recent years, considerable efforts have been undertaken in a number of countries to encourage the use of specific symbols for first-aid activities (in many cases, a white cross on a green background) and for a variety of medical services (such as the blue star of life for ambulance services). For further information about such alternative signs, see the commentary on Article 44, para. 2695.
62 - See Statutes of the International Red Cross and Red Crescent Movement (1986), Article 3(2), third paragraph. It should also be noted that third parties normally unable to use the distinctive emblems or their designations in accordance with Article 53 may, in some cases, be permitted to do so within certain limits, owing to the existence of a partnership with a National Red Cross or Red Crescent Society. According to the terms of the partnership, for example, the third party may be authorized to include the logo of the National Society (which normally includes the red cross emblem or the red crescent emblem, accompanied by the name of the National Society) on materials it produces about the partnership, subject to certain conditions. However, use of the emblem on third-party items for sale is prohibited. This type of third-party use is provided for in the 1991 Emblem Regulations. See also the commentary on Article 44, paras 2683–2684.
63 - This forms an integral part of the ICRC’s mandate as a guardian of international humanitarian law and of its cooperation with National Societies; see Statutes of the International Red Cross and Red Crescent Movement (1986), Article 5(2)(c) and (g) and (4)(a).
64 - One such rare case in the United Kingdom in 1988 concerned the public distribution by the Labour Party (at that time the leading opposition political party) of a leaflet bearing a design of a pound sterling sign superimposed on a red cross, against a yellow background. The aim of the leaflet was to support a campaign against cuts to health care. Despite being approached repeatedly by both the British Red Cross Society and the Ministry of Defence, the Labour Party refused to withdraw the design. Aside from being wrongfully used to represent health care, of particular concern in this instance was the fact that a design similar to the red cross emblem was being used on a wide scale for a political purpose, thereby serving to undermine the emblem’s neutrality. In a case brought by the UK Government, the Labour Party’s general secretary was found guilty of contravening section 6 of the 1957 Geneva Conventions Act (referring to unauthorized use of the distinctive emblems, designations and similar designs). A separate case was also brought against a newspaper editor who had published the design in support of the Labour Party’s campaign; he was also convicted. The process of resolving this matter through the courts was not without difficulty (Meyer, pp. 463–464).
65 - This is the experience of the Swiss Red Cross Society and of the British Red Cross Society, and appears to be the case in a number of countries. Frequently, misusers will be unaware of the restrictions on the use of the distinctive emblems, related designations, and imitations thereof; simply bringing these to the attention of misusers may be sufficient to compel them to cease such use. The approach of the British Red Cross is elaborated in Meyer, p. 461.
66 - One such campaign was implemented by the Nepal Red Cross Society in 2001. The national campaign aimed to address the widespread misuse of the red cross emblem across Nepal. It is reported that by 2006, 73 out of 75 districts had been declared ‘emblem-misuse-free’ and the majority of former misusers, including hospitals, clinics, pharmacies, ambulances and others, had begun to use their own logos (Leach, p. 4).