Introduction
It is a common practice for international non-governmental organizations (NGOs) to register their symbols and emblems as trademarks in order to obtain precise protection and secure their rights in certain areas where they use them to mark certain products or services that may or may not be related to the mission of the organization. This circumstance requires differentiation, when analyzing such an emblem’s use within the scope of third-party relationships, between cases in which the use of the emblem as such is the subject matter of a contract and those in which the emblem has been registered as a trademark. In the latter situation, the subject matter of the contractual relationship would be the emblem’s new nature (a trademark), with the new sphere of protection thereby conferred on it. This practice, however, is ultimately non-existent when the NGO in question is the International Committee of the Red Cross (ICRC).
Before carrying out a specific analysis of the case of the ICRC’s emblem, we must briefly explain the kinds of relationships to which we will be referring as well as the motivations and purposes that have made collaborations with the ICRC and other NGOs proliferate in recent times. Models of collaboration with the business sector may be of numerous types, among which may be mentioned financial sponsorships,Footnote 1 patronages,Footnote 2 economic contributions,Footnote 3 event sponsorships,Footnote 4 as well as product, service, and infrastructure concessions.Footnote 5 What is more complicated is the answer to the following question: what are the purposes that underlie all of these collaborative models? It is difficult to answer this question in the abstract since only through a careful analysis of each specific relationship between a NGO and a third party can one clarify or highlight the distinct motivations behind such relationships. That being said, we could say that there are multiple interests at play; above all, those of the third party are noteworthy, as they are related to the reputational advantage that each company gains upon joining its image to that of a non-profit organization and the special impact this conjunction has on the business’s brand. It is evident that this type of collaboration will generate connections with interest groups, customers, human resources, governments, suppliers, and distributors, among others. In any case, the relationship between the NGO and third-party companies should be understood as one that provides the basic means of survival for the former while, at the same time, allowing the latter to become involved in their communities and develop their social “presence.” Third parties can also obtain indirect benefits related to their advertising and their image; in many cases, they may receive favourable fiscal treatment.Footnote 6 All relationships of this type require a series of criteria and some minimum of mandatory compliance to be established, all of which allow, per the contract or collaboration agreement, each actor’s identity and degree of participation in the activity for which they have united their images to be maintained and clearly manifested before the public.
When it comes to relationships between distinct NGOs themselves, we must emphasize that this type of collaboration has not been as frequent as others given that certain factors, such as, for example, the abundance of international cooperation funds, have decreased the need to carry out common activities that combine efforts and, above all, finances. This is the reason for which the tendency among these organizations to carry out their own activities prevails. But this is only to say that establishing such relationships, in which NGOs share means and resources to achieve common objectives, is not very common. Common action, such as the coordination of parallel and complementary activities or the subcontracting carried out by some international NGOs to pursue certain projects in the territorial field of action of local NGOs, is an entirely different case.
Thus, both types of collaboration are frequent. Cases of the first type — that is, collaborations with companies — have generated what is commonly called “marketing with a cause.”Footnote 7 Regarding this field of action of NGOs, by way of example, the NGO coordinator for development in Spain developed a code of conduct in 1998 that outlines the limitationsFootnote 8 and parameters to be taken into account by these organizations once a collaborative relationship is established with companiesFootnote 9 that could materialize into contracts.Footnote 10 Nevertheless, at present, NGO collaborations with other NGOs, international organizations (IOs), or even companies are rarely subject to streamlined regulatory processes. As such, such collaborations require timely assessment, by the relevant NGO, of certain factors related to the third party itself and to the collaboration agreement or contract in question, the intention of which is to extend the NGO’s image through the use of its symbol or emblem.
The ICRC and Its Emblem: A Particular Case
introduction
This section highlights the specific case of the ICRC, a NGO whose emblem, given its importance and the impact of its use, has been the subject of international standards, model laws, and regulations of use.Footnote 11 These rules have had only one aim: to standardize the use and protection of the symbol or emblem of the NGO it represents. We must take into account the ICRC’s peculiar status, which stems from a series of recognized immunities and privileges that it enjoys in the states where its work is carried out. This status has also caused it to appear before the international community on some occasions not as a NGO but, rather, as an IO. However, we must remember that the ICRC’s structure is based on national committees or societies, acting independently in each state yet remaining interrelated among themselves through an internationally recognized common forum, which gives the organization a privileged status over other NGOs. It is also necessary to keep in mind that “ownership” of the symbol or emblem to be employed and protected belongs to the ICRC itself; this means that the national committees and societies have the right to use it within the limits and norms of use established by the former. In this sense, we must take into account, on the one hand, the existence of the original symbol of the organization in question, of which it is “proprietor” and, on the other hand, that of the symbols of the respective national committees and societies, which are composed, in both cases, of the ICRC’s emblem plus the badge insignia or denomination of the corresponding national committee or society.
the icrc: a ngo with io traits
The emblem of the ICRC is perhaps a unique and particular example of the subject matter of this article. The first qualifier refers to the unique interests of the NGO that it represents as well as its reputation and international stature.Footnote 12 The second qualifier refers to the status that it holds compared to that of the symbols and emblems of other NGOs. This emblem, whose creation dates back to 1863,Footnote 13 has been subject to different national and international standards that have sought to protect and maintain the integrity of the values it represents at all times.Footnote 14 For this reason, the ICRC and the emblem that represents it truly enjoy international recognition as a flagship organization whose activities of protecting the wounded in times of war, providing humanitarian aid in catastrophes, fighting against hunger and epidemics, and collaborating within the field of development cooperation, among others, are world-renowned.
We must remember that, as noted in the previous section, the structure of the organization requires us to differentiate between the ICRC,Footnote 15 the International Federation of Red Cross and Red Crescent Societies (Federation of Societies),Footnote 16 and the different national societies.Footnote 17 Grouped all together, these distinct organizations constitute what is called the International Red Cross and Red Crescent Movement (International Movement).Footnote 18 The emblem of all of these organizations is identical, distinguished only by the graphic-denominative designation that is included beneath each iteration of the same. The ICRC and the Federation of Societies are independent bodies that act according to their own statutes. Only these two organizations can be considered NGOs of an international character, and, in this sense, it would be plausible to think that the only emblem relevant to this article would be that used by these two organizations. However, again, it is impossible to discuss protection of the latter independently from the emblems used by the national societies. We must remember that most of the International Movement’s activities are carried out by the national societies in accordance with the independence that has been granted them by the ICRC, a body that coordinates their international activities, guides their local activities within their own territories, and which therefore exercises, in reality, a moral authority over such activities.Footnote 19 This model of organization and functioning sometimes complicates the distinction between situations in which the emblem is being used by the ICRC or by a national society. That said, the majority of cases in which the emblem is used is in connection with activities undertaken by a national society.
normative framework of protection of the icrc’s emblem
Since its inception, the peculiarity of the ICRC’s emblem has required the development of international standards, emitted by different ICRC conferences, national committees, and the organization itself at the internal level, in order to ensure the protection of an asset that could easily become the object of abuse and irregular usage that would damage, in most cases, the spirit that the emblem represents. These standards have arisen in a context otherwise generally lacking in legal regulation that would ensure the emblem’s correct usage, and, therefore, the ICRC and the national societies have developed a framework of concrete protection for this asset. For this reason, any analysis of this NGO’s protection of this asset requires a specific examination of the texts that regulate the emblem’s use as well as the various postulates that flow from these.
In this sense, and as a preview of their content, it should be noted that what is highlighted in all of these rules is the difference between two characteristic uses of the emblem: the protective and the indicative. In this article, and by the very definition of the adjectives that qualify each use, our interest is focused on those cases in which protection is necessary for the emblem’s use as an indication, since the other case, its use for protection, relates to situations of armed conflict. The symbol’s utilization and protection in the modality of its indicative use, and not its use in periods of armed conflict, is therefore the focus of the present article.
Inapplicability of Article 6ter(1)(b) of the Paris Convention for the Protection of Industrial Property
Before proceeding with an analysis of the legal texts that protect, in one way or another, the ICRC’s emblem in different areas, a question arises: is Article 6ter(1)(b) of the Paris Convention for the Protection of Industrial Property (Paris Convention) applicable to the protection of the emblem of a NGO such as the ICRC?Footnote 20 To determine whether this symbol or emblem is protected by the Paris Convention, we have to determine, in principle, whether this organization and its emblem are included within the protection model established by Article 6ter; if not, the rule does not apply to them. There are arguments on both sides. On the one hand, the nuances of the organization’s non-intergovernmental nature complicate the emblem’s inclusion within the scope of Article 6ter’s protection; this is all the more so when considered alongside the existence of other international norms that regulate the issue (as we shall see). But, on the other hand, the character of the activities carried out by the organization as well as the recognition and adherence it has attained, through the development of its mission, from the international community, states, and organizations of all kinds have led some to consider the ICRC as a true IO in some circumstances; in turn, this has resulted in certain cases in which the emblem has been found to benefit from protection under the Paris Convention.
From our point of view, the law is very clear in this regard. Even though some authorsFootnote 21 and jurisprudenceFootnote 22 do recognize that the protection of this emblem may be based, in some circumstances, on the application of Article 6ter of the Paris Convention, we must understand that, when the ICRC is considered to be an NGO, its nature does not fulfil the “intergovernmental” requirement established by this article. And while some authors do not consider it necessary to comply with this requirement in order for the symbols or emblems of certain international bodies to benefit from this model of protection, to understand it in this way would be to broadly over-interpret the law in a way that does not align with its spirit. In addition, the Paris Convention itself, in Article 6ter(1)(b) in fine, excludes all those emblems that are already specifically protected by other international texts from its scope of application. This is the specific case that concerns us. If we take into account that this proviso was included in Article 6ter explicitly to address the case of the ICRC emblem,Footnote 23 there is no doubt that the drafters’ intention was none other than to exclude the ICRC emblem from the scope of Article 6ter’s protection, particularly in light of the certainty that the emblem’s protection is indeed guaranteed by different international norms.
For either of the two reasons just stated, the inapplicability of Article 6ter of the Paris Convention to the protection of this emblem becomes evident. However, the first reason serves not only as the basis for such an assertion but also as the basis for the existence of the second. That is to say, when the drafters of the Paris Convention incorporated the exclusionary rule into the text of Article 6ter(1)(b), fully aware of the fact that the ICRC’s emblem was, up until that moment, the only one of such characteristics protected by an international norm, they not only intended to avoid the overlap of several international norms that some authors had proposed, but they also intended to avoid the problem of pronouncing on the ICRC’s debatable characterization as an IO.
If intergovernmental character serves as the basis for protection under Article 6ter, and had paragraph (1)(b) not been included in that article, would it have been possible to postulate the application of Article 6ter’s protections to the ICRC’s emblem? In other words, would it have been possible to elaborate a rule of similar characteristics that would have left the ICRC’s emblem outside the scope of protection? The reality is that it was much easier for the drafters to exclude this emblem from the scope of the precept by arguing that there is another international standard that protects it, rather than asserting that such exclusion comes from not considering the ICRC to be an international, intergovernmental organization, since, although it is not, the status and recognition that it has attained is the same as that of such an organization. Indeed, then, the answer to the question before us regarding the application of Article 6ter to the protection of this emblem is negative.
Having highlighted the Paris Convention’s inapplicability in protecting the ICRC’s emblem, we now move on to an analysis of a group of norms whose nature is very specific, comprising the 1949 Geneva Conventions and their Additional Protocols, the Regulations on the Use of the Emblem of the Red Cross or the Red Crescent by the National Societies (Regulations),Footnote 24 the Model Law Concerning the Use and Protection of the Emblem of the Red Cross, Red Crescent and Red Crystal (Model Law),Footnote 25 internal rules and regulations of the different national societies, and, finally, regulations on the use and protection of the ICRC’s emblem in national systems.
1949 Geneva Conventions and Their Additional Protocols: A Specific Universal Protection
The title of this section refers to Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention I),Footnote 26 Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva Convention II),Footnote 27 and Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV).Footnote 28 These conventions are the basis for the obligation of states parties to regulate the ICRC emblem’s use in accordance with the provisions therein, thus ensuring its proper use and protection.Footnote 29 The drafters, as early as 1949, were already aware of the possibility of abuse and misuse that weighed on the emblem. Thus, and even though the conventions have nothing to do with the protection of intangible property, the drafters included precepts regarding the use of the distinctive sign that would identify the humanitarian actions regulated by the texts.
In Articles 38–44 of Geneva Convention I, the different modalities of the emblem’s use are defined. Article 44 establishes limitations on the emblem’s employment, enumerating certain exceptions under which the relevant national society, or those with explicit authorization of the same, may make use of the emblem, particularly in times of peace. The rule expressly states that the emblem of the Red Cross and Red Crescent cannot be used in time of either peace or war in any way other than to designate or protect the units and health facilities, personnel and equipment protected by the convention, except as provided in the article itself or others in which similar issues are regulated.
In this sense, the national societies of the ICRC and the other societies (Red Crescent and Red Lion and Sun) are entitled to use the distinctive sign that confers the protections of the convention only in the situations admitted by the same. Thus, national societies of the ICRC may make use, in time of peace and in accordance with national legislation, of the name and emblem of the ICRC for their activities, provided that they abide by the principles formulated by the international conferences of the ICRC. If such activities continue in time of war, the conditions of employment of the emblem must be such that it cannot be considered as tending to confer the protections of the convention; therefore, the emblem must have relatively small dimensions and cannot be placed on armbands or on roofs. On the other hand, the emblem may be used, at any time, by the international organizations of the International Movement and their duly authorized personnel. The rules also provide that the emblem may be used in exceptional cases, in times of peace, to indicate emergency vehicles and to mark the location of aid posts exclusively reserved for free assistance to the wounded or sick, provided that the requirements established by national legislation are met and there is express authorization by the relevant national society.
Finally, in Title IX, Articles 53 and 54 establish, respectively, prohibition of abuses of the emblem and the obligation of states parties to promulgate all norms necessary in each state to combat and repress such abuses.Footnote 30 Specifically, Article 53 prohibits the use of the emblem by individuals, societies, firms, and public or private companies who have no right to use it in accordance with the provisions of Geneva Convention I, regardless of their purpose in doing so. It also prohibits the use of any other sign or designation that imitates the emblem. In order to avoid confusion that could be generated by the similarity of the ICRC’s emblem and the emblem of the Swiss Confederation (given that the two use the same colours, albeit inverted), Article 53 also prohibits the use by private individuals, societies, or firms of the coat of arms of the Swiss Confederation as well as any sign that constitutes an imitation thereof, whether as a trademark or as an element of said trademark, for a purpose that goes against good commercial practice or in conditions that could injure the Swiss national sentiment. The third paragraph of Article 53 further establishes a period of derogation for states parties to Geneva Convention I that were not parties to the Geneva Convention of 27 July 1929 that would last a maximum of three years counting from Geneva Convention I’s coming into force; after this period, such states parties would have to abandon their use of the emblem, it being understood that such use would not be considered, during that term and in time of war, as tending to confer protection under Geneva Convention I. Finally, these prohibitions extend to the emblems of the Media Luna, the Red Lion and Sun, which are recognized in Article 38 of Geneva Convention I; and, from 2005, this protection has also extended to the Red Crystal emblem.Footnote 31
In Geneva Conventions II and IV, there are similar provisions. Articles 41–43 of Geneva Convention II include the conditions of the symbol’s use, and Article 45 entrusts states with the task of suppressing and preventing abuses of the emblem. In Geneva Convention IV, reference is made to the rules of Geneva Convention I. Footnote 32 Likewise, in the context of the conference that saw these three conventions come into being, Resolution 5 recommends that states combat abuse of the emblem in order to maintain the special significance that it represents.Footnote 33 All of these rules contain a detailed list of both the conditions that must coincide for use of the emblem as well as the possible users of it. Dealing with the issue in this way has the clear objective of minimizing the circumstances in which the emblem can be used as well as its authorized users in order to make the protection’s scope clearer.
The legal instruments developed at the 1949 conference also established the distinction between the emblem’s protective and indicative uses. The former is understood as the emblem’s representation of activities performed in accordance with the conventions. The second case, the emblem’s indicative use, serves to relate an institution, person, or thing to the ICRC.Footnote 34 Both uses have distinct backgrounds and respond to different situations. Therefore, protection will depend, in each case, on the type of use being given to the emblem; at all times, the type of use will determine the application of certain standards over others. In all cases where abuse or irregular use of the emblem occurs in its protective capacity, the rules set out in the conventions are applicable. However, when it is used as an indication, the emblem’s protection will depend on an assessment of the elements that constitute each specific case in order to determine whether protection is based on the application of the rules contained in the conventions or, rather, on other, more appropriate rules.
In any case, protection of the emblem against abusive and undue uses has become a difficult task for both the ICRC and states over the years. Following the elaboration of the norms set out in the conventions, which form the basis of all subsequent norms generated in the last half of the last century, the ICRC and the international community have elaborated other norms that either complete or complement those that already exist. Among those that complete previously existing norms are the Additional Protocols, while the Regulations and Model Law are among those that complement them. Given the independence the latter two sets of norms have in relation to the Geneva Conventions, we will enter into greater detail about them in the next section. Regarding the Additional Protocols, however, it is necessary to point out that Additional Protocol I extends the protective use of the emblem to other users and other situations.Footnote 35
In this context, we must also highlight Additional Protocol III, which established the Red Crystal as a new distinctive emblem in 2005.Footnote 36 This additional emblem has the same legal recognition and protection from misuse as the other emblems of the ICRC under the Geneva Conventions. Footnote 37 The Red Crystal emblem provides an alternative to the Red Cross and Red Crescent emblems and is intended to be free from any national, religious, cultural, or political connotations. Thus, Additional Protocol III offers a solution to a problem that some national societies have had with using either the Red Cross or Red Crescent symbols. Its adoption has allowed, for example, the Israeli National Society and the Palestinian Red Crescent Society to be admitted to the International Federation of Red Cross and Red Crescent Societies. The adoption of Additional Protocol III creates a more flexible environment by allowing the indicative use of a combination of recognized emblems or the Red Shield of David within the home territory of a national society, not otherwise permitted under previous rules, as long as the emblem or combination of emblems is incorporated within the frame of the Red Crystal. Finally, the twenty-ninth International Conference of the Red Cross and Red Crescent adopted a resolution on 22 June 2006 that adapted the statutes of the International Movement to Additional Protocol III. Footnote 38 In particular, a national society is no longer required to use a name and emblem in conformity with the Geneva Conventions in order to be recognized but, rather, is now required to “use a name and distinctive emblem in conformity with the Geneva Conventions and their Additional Protocols.”Footnote 39
The importance of all of these norms is manifested, above all, in protecting the emblem when it is used as a protective device. What is also clear is that all of them are the baseline for states’ commitment to elaborate internal norms that serve the same function in cases where the emblem is used as an indication by national societies, by third parties with relevant authorization, or even by third parties without such authorization. In any case, it seems clear that the effectiveness of protection will depend, fundamentally, on the intervention of states since it is these entities that must give force and application, within both legislative and legal spheres, to the international provisions.
The Regulations and the Model Law
To further clarify the issue of the emblem’s protection and to bring together its use and protection under a single standard, the ICRC decided to draw up the Regulations, which were first adopted at the twentieth Conference of Vienna in 1965 and which, after successive revisions,Footnote 40 were approved in their current version by the Council of Delegates in Budapest in 1991.Footnote 41 The Regulations, as their prologue indicates, aim to point out certain issues regarding the emblem’s use and users. In this sense, the Regulations not only specify, but also broaden and diversify, the cases in which the emblem may be used by national societies, clearly with the purpose that they might increase their financial resources. In some ways, this increases the possibility of the emblem being used by, or in conjunction with, third parties. This enlargement supposes, in any case, that the rules allow for situations in which the emblem may be used for lucrative purposes, subject always to the limits set by the Regulations and national legislation and while keeping intact the respect due to the emblem. We must not forget that this expansion increases the possibilities for misuse and abuse of the symbol.
In relation to the emblem’s use, the text of the Regulations reiterates the distinction that we have already noted between protective and indicative use. Articles 1–7 make up Chapter I of the Regulations and include a series of general rules that relate to both of these uses; Articles 8–15 make up Chapter II and regulate the emblem’s protective use; and, finally, Articles 16–27 make up Chapter III and regulate its indicative use. As already mentioned, regulation of this last modality of use is what most interests us here. The first section of Chapter III establishes who can use the emblem (members or employees of the ICRC and authorized third parties); the second section regulates which property can be marked with the emblem (buildings and premises of national societies, hospitals, relief stations, and vehicles used by national societies); and the third section, which is the most interesting for this study, deals with the dissemination and collection of funds.
It is this last section — specifically, Article 23 — which regulates the possibility that the emblem be used, pursuant to contractual relations, for a purpose that is, ultimately, to earn a profit. This use contemplates two models: collaborative contracts between national societies and commercial companies and contracts regulating the use of the emblem by commercial companies in certain campaigns. This is where we find the “breeding ground” for situations of irregular use by third parties and, sometimes, even by national societies themselves. Indeed, Article 23 opens the door to the possibility of confusion of third parties in situations in which the emblem is used legally or illegally. The possibility that the emblem can be used by national societies to obtain a monetary benefit produces situations that would, effectively, not exist if the emblem could not be used for this purpose. It is evident that the interest of the ICRC is not to make a profit, in the commercial sense of the word, but, rather, to obtain funds for the development of activities of an organization of its character and to finance its operations. However, it would have been easier to create another distinctive sign, along with rules for its use, that would identify the organization in all activities in which it uses the symbol as an indication.Footnote 42
Article 23, considered along with the possibility that the organization itself might reproduce a brand, logo, or company name alongside the emblem — always according to contractual stipulations — on materials, printed literature, and other objects in collaborative campaigns, enables national societies to authorize use of the emblem by a commercial company or other organization. In both cases, the use would be subject to compliance with several requirements: the impossibility of public confusion between the company and the organization;Footnote 43 limits on the scope of the campaign in terms of time and space;Footnote 44 the prohibition of activities on the part of the collaborating company that are contrary to the principles of the organization;Footnote 45 a right for the national society to nullify the contract in certain cases;Footnote 46 the advantageousness of the campaign for the organization;Footnote 47 and written contractual terms approved by the national society’s directors.Footnote 48 All of these requirements, other than those of Article 23(3)(b), apply both to cases of collaborative campaigns and to use by third parties.Footnote 49 The Regulations themselves clarify the scope of each of these requirements by examining a series of circumstances and elements that clarify the terms of the clauses.
The second internally produced text to which we have referred is the Model Law on the use and protection of the ICRC’s emblem.Footnote 50 This should be understood as an attempt to establish homogeneous regulation of the emblem’s protection within each state. A product of the 1993 International Conference and based on the texts reviewed in the above analysis, the Model Law intends to be a model to be used by the drafters, in each state, of specific national standards of use and protection.Footnote 51 Of course, each country must adapt the structure and content of the model text to its own legal system and norms. It is clear that the budgets allocated for the elaboration of national norms vary from one state to another, and, therefore, the text is only a guide, and it must be interpreted as such.
The Model Law is accompanied by certain recommendations, such as, for example, the creation of a national committee in each country, in which all affected political bodies participate, to draw up a domestic set of rules for use and protection of the emblem. In relation to the indicative use of the emblem by national societies and by third parties within the framework of a contractual relationship, the Model Law, in Article 6(3), refers to and requires application of the Regulations. Article 12, entitled provisional measures, provides that the competent national authority shall carry out measures necessary to end the abuse and illegal use of the emblem. Finally, Article 13 of the Model Law expressly prohibits the registration of trademarks, trade names, industrial drawings or designs, and so on that make use of the emblem. In this regard, as already explained, some states have developed a specific law for the emblem’s protection;Footnote 52 however, it is much more common to find that such protection has been expressly included in the relevant state’s legislation on intellectual property.Footnote 53
Internal Regulations of Different National Societies
The rules established by the internal regulations of the national society in each state usually differentiate between the protective use of the emblem, which is to mark the persons, establishments, and goods that must be respected when armed conflicts take place, and the indicative use, which serves to identify the persons, establishments, and assets that are related to the International Movement.Footnote 54 These rules also typically provide that the emblem can be used to indicate the buildings, establishments, vehicles, boats, and other similar belongings of, for example, the Spanish Red Cross and foresee the elaboration of an internal manual that more specifically refers to the emblem and details its characteristics and use as well as the distinctive denomination of the national society in question. Such internal regulations must be applied by all members, organs, and managerial positions of or within the national society.
More interesting for our purposes are internal regulations that refer to possible uses of the emblem in business collaborations, patronages, sponsorships, and any other activities in which the ICRC’s emblem or denomination is authorized for use by third parties, whether alone or next to the logo, trademark, or company name of collaborating companies. Sometimes nothing in this respect is stated in a national society’s internal operating regulations, while others are more explicit, such as in the case of the Spanish National Society of the Red Cross. This national organization requires prior authorization from the president, governing bodies, or management positions for such uses to be permitted.Footnote 55 In any case, these internal regulations invariably provide that any use of the emblem must comply with the provisions of the Geneva Conventions, the Additional Protocols, the Regulations, and other current provisions relating to this issue. In this sense, these internal regulations only establish guidelines of conduct in relation to the emblem’s usage to be taken into account by the different organs of the relevant national society, allowing each state’s national society to adapt what is already established by other, hierarchically superior norms.
Regulation of the Use and Protection of the ICRC’s Emblem in National Systems: A Diversity of Models
The special characteristics of the ICRC’s emblem have led to the development of different national standards of varying scopes. The purpose of these standards has been, in any case, to expressly establish the protection of this emblem. Faced with a model that is based on the development of specific texts, some legal systems maintain the application of international standards, taken together with national standards, as a protection mechanism that generally protects NGOs’ symbols and emblems within the scope of generally applicable intellectual property law. We must point out, however, that it is not difficult to find national legal systems that have provided for specific rules referring to the protection of the ICRC’s emblem. These are either inserted in more generally applicable intellectual property legislationFootnote 56 or in free-standing laws, assuming, in any case, the establishment of specific rules of protection for this property in certain uses.Footnote 57
The ICRC’s Emblem and the Different Models of Use
introduction
This part of the analysis must start from the distinction, on the one hand, between two types of use and, on the other, of two situations. Regarding the former, as already mentioned, we refer to the protective use and the indicative use. In terms of situations, we differentiate between times of war and times of peace. Our study is only interested in one of the possible combinations of the former and latter: the emblem’s use by the ICRC or national societies as an indication in times of peace. The exclusion of the other combinations is motivated by the need to base our study of the emblem’s protection on a “standard” situation that does not involve additional circumstantial factors such as war. In this sense, we exclude, in all cases, the protective use since it finds its origin in armed conflicts,Footnote 58 and we also exclude the indicative use of the emblem in times of armed conflict since, in this period and as we have mentioned earlier, situations often converge that provoke instability among the elements surrounding the case, and such convergence prevents us from establishing a clear path of protection.Footnote 59
Leaving aside the aforementioned differentiation between the protective and the indicative use of the emblem and focusing only on the indicative use, the rules referring to the protection of the ICRC’s emblem raise different models of use, depending on the combination of two factors — that is, by whom and how the emblem is to be used. Different scenarios can be drawn from consideration of different international, national, and internal regulations: uses that can be made of the emblem by the ICRC or the Federation of Societies; uses by national societies in, or independent of, collaboration with third parties; and uses by third parties with or without the authorization of national societies.
use of the emblem by the icrc and the federation of societies
This type of use is addressed in Article 44(3) of Geneva Convention I: “The international Red Cross organizations and their duly authorized personnel shall be permitted to make use, at all times, of the emblem of the Red Cross on a white background.” This precept is the basis of Article 7 of the Model Law, which reproduces the international rule while also specifying the authorized international organizations — namely, the ICRC and the Federation of Societies.Footnote 60 It is curious that both Geneva Convention I and the Regulations, when addressing other models of use (as we shall see), specify permissible uses and exceptions; yet there is no such specification in the case where the use in question is made by the international institutions of the organization. We must interpret this to mean that concern for proper use of the emblem does not arise in cases of use of the emblem by either the ICRC or the Federation of Societies. However, such concern does indeed arise in connection with the emblem’s use in activities carried out by national societies.
In any case, the protection of the emblem in the case of its use by either of the two international bodies, both of which are members of the International Movement, would be linked to application of the Geneva Conventions. On the other hand, if, as stated in the Regulations, the various modes of use established therein are based on the fundamental principles of the International Movement, and these principles affect the actions of the national societies, it would be logical to think that both the ICRC’s and the Federation of Societies’s use of the emblem should respect those same principles.
use of the emblem by a national society
The national societies are responsible for administering the use of the ICRC’s emblem in each state. Of course, they do not only manage such use, but they are also potential users of it (other than, of course, in exceptional cases). As has already been stated, our interest is in establishing the protections applicable to this emblem in the case of its indicative use by national societies in times of peace. Article 44 of Geneva Convention I is the legal basis for this mode of use. Its terms admit the possibility that national societies may use the ICRC’s emblem in periods of peace, provided that this use does not contradict the internal legislation of the state of the national society that intends to use it. The permissibility of such use must be ascertained, however, in light of the circumstances of each case. From the Geneva Conventions and their Additional Protocols, it can be deduced that national societies may use the emblem in peacetime to develop activities directly related to the objectives of the organization: when such activities do not pursue the aims and objectives that arise from the nature of the organization, these national societies must refrain from using the emblem. However, it is clear that today the ICRC pursues activities of many types and that these activities, in many cases, do not maintain a “true” relationship with the objectives of the organization. It is in the development of such activities that situations can arise in which there is a certain neglect of the emblem. Such situations, because the user is the institution responsible for the emblem’s proper use, could be considered more as an “abuse” than an “illegal” use. The problem that such activities pose for those who have the responsibility of protecting the asset is that they may create a great deal of confusion regarding, or even bring great discredit on, what the emblem represents. In this sense, the harm caused by misuse of the emblem may have repercussions for the national societies themselves as well as for the organization in general.
The activities that might incur improper use of the emblem are, at times, those that can bring important financial support to the International Movement since this lies outside the principles of the organization, as we have said. We therefore wonder whether the organization has an obligation to renounce pursuit of such income so as not to harm or damage the image of the emblem, and whether the use of the emblem in the course of such activities is contrary to the rules laid out in the Geneva Conventions and the Regulations for its protection. In reality, both issues are not easily addressed since this would require detailed assessment of the factors that arise each time the emblem is used by national societies. We could say, with caution, that certain uses of the emblem may harm the image of the ICRC in some circumstances, whereas, in others, its use would be justified not by the means employed but, rather, by the end sought. Protection of the emblem in these cases depends on governments since the rules of the International Movement clearly establish that suppression of abuses of the emblem is within their competence. Furthermore, even having granted national societies the right to use, and administer use of, the emblem, these same governments are ultimately the guardians who assure that national societies carry out their responsibilities while respecting national and international standards.
On the other hand, we have the case of the emblem’s use through cooperation between a national society and a third party, which is becoming more and more frequent. The ICRC is a NGO with very special characteristics that needs to find ways to sustain and finance its activities. We observe how national societies have developed advertising campaigns, in collaboration with IOs and commercial companies, that allow them to raise funds in pursuit of this objective. When a national society enters into a partnership with an IO, for example as the implementing partner of a special project on behalf of the ICRC, the IO may want the national society to acknowledge its contribution in some way. This acknowledgement could take the form of the joint use of emblems — that is, the emblem of the national society jointly with the emblem of the IO. In this model of use, such an arrangement would have to be included in the agreement between the national society and the IO. The joint use of emblems in this way is potentially hazardous for the image of the national society, as it may blur the distinction between the national society and the IO. For this reason, given the wider risks for the entire International Movement, the joint use of emblems should be avoided as far as possible, but this suggestion assumes that such an arrangement is never a commercial relationship. However, if the relationship is with a commercial company, the cooperation is an exchange: the national society allows the company to place its brand, logo, and so on next to its emblem in certain campaigns that are related to the organizational mission, allowing the company to benefit from the publicity that this entails, while, in return, the national society receives financial support for that campaign as well as for the development of its other activities.
The possibility of carrying out this type of activity appears, as we said, from the text of Article 23(3) of the Regulations, which states: “When the National Society obtains the collaboration of commercial companies or other organizations, with the purpose of obtaining funds or dissemination, it may print the brand, logo or corporate name of those companies in the material that it uses, in advertising literature or in objects for sale.” As I have said, this possibility remains subject to the fulfilment of certain conditions when analyzing the Regulations: the avoidance of confusion among the public, the national society’s control of the campaign, temporal and spatial limits to the activity, the avoidance of activities by the collaborating company that are contrary to the aims of the organization, the possibility of unilateral cancellation of the contract by the national society, the requirement that the campaign bring an important benefit to the organization, and the requirement that the contract be in written form and approved by national society directors.Footnote 61
The case described above fits the model of a collaboration contract in which one of the parties has special characteristics. The conditions of such a contract, and those on which the corresponding national society will base its activities, must in all cases be those laid out for such situations by the Regulations. The inclusion of rules that refer to this question in the Regulations imposes limits on the emblem’s use for both parties. The breach of any of these conditions, which tend to favour the proper use of the emblem and its protection, may arise from the acts of either the national society itself, which has not acted as expected, or from those of the collaborating company, which may have tried to exploit circumstances such as neglect, lack of attention, ignorance, or lack of information on the national society’s part. It is logical, then, that what is stipulated in the Regulations should be included in the terms of the collaborative contract itself. Acting in this way, many problems could be avoided in the event that the emblem is used, contrary to its interests, within the scope of a contractually defined collaboration.
In this type of relationship, and in reference to private international law questions, national societies, upon formalizing a collaboration, should stipulate by means of inclusion of a contractual clause to such effect that the national courts of their state shall be the competent authorities to resolve any disputes related to the relationship and that the laws applicable to both the interpretation of the contract and the resolution of any dispute that may arise thereunder will be those of the state of the relevant national society. Given that national societies cannot authorize the use of the emblem outside the territory for which the ICRC has recognized their competence, the usual practice should therefore be to apply the law of the state where the emblem’s use is going to take place to the contract and the protection of the emblem.Footnote 62
use of the emblem by a third party with authorization
The third possibility is that in which the emblem is used by a third party with authorization from the corresponding national society. In this case, whoever uses the symbol does so on the basis of a relationship with the national society, a relationship that grants the third party the right to use the emblem. The difference from the preceding scenario, in which a national society uses its emblem next to the brand of a company, is that now the use is not carried out within the context of a common activity or collaboration that is related to the aims and objectives of the ICRC; rather, the third party uses the emblem on its own in accordance with the corresponding authorization to develop an activity.Footnote 63 This type of employment has, as its purpose, the financing of the national society itself. Indeed, any protection of the emblem in this case will come from the terms regulating use of the emblem that are included by the national society in the contract.
When the ICRC’s emblem is used in the context of a contractual relationship, again, a distinction must be made between cases in which use of the emblem as such is the subject matter of the contract and those in which the emblem has been registered as a trademark and thereby benefits from a different sphere of protection.Footnote 64 When one’s interest in a symbol is specifically safeguarded by registration as a trademark, and use of such symbol is an express consideration of a contractual relationship with a third party, one cannot think of such third-party use according to the model of an assignment agreement. To do so would exceed the nature of the consideration granted to the third party, and, therefore, it is impossible that this type of intangible property be the subject of such a contract. However, the possibility of establishing a license is not entirely unlikely but actually feasible, as is demonstrated in practice by national societies’ relations with third parties. In these cases, if there is a problem with the use specified in the contract, and if an international dispute resolution mechanism has not been selected by the parties through express or tacit consent, designation of the competent judicial authority for purposes of protection against misuse will fall to the forums that are competent in the matter within the state where protection is intended. The law applicable to such a contract will usually be that which the parties have determined in the contract per the freedom of choice principle. In the absence of such designation, the parties will have to resort to the rules of private international law of the state whose courts have jurisdiction over the matter.
The Protection of the ICRC’s Emblem against Third Parties
introduction
When it comes to NGOs, the scheme of protection for the symbols and emblems that represent these organizations differs from that for protection of this type of asset in the case of IOs. The organizational model of the former and their requirement to obtain financial resources to carry out their activities has led to the need to resort, in almost all cases and despite their non-profit nature, to registration of their symbols and emblems as trademarks.Footnote 65 Although these assets do not fit the commercial connotation generally associated with trademarks, they do have important parallels with the latter. Unlike the symbols and emblems of IOs, which are subject to their own rules of protection, those of NGOs do not find any express protection in trademark law when they have not been registered.Footnote 66 For this reason, NGOs seek to protect these assets, for all intents and purposes, by registering them and thereby guaranteeing their own, defined protection status, which allows such symbols and emblems to be used commercially with the guarantee that there is a specific legal framework to protect them. It is this need to register where the greatest difference between the symbols and emblems of NGOs and those of IOs is to be found. Following this model, many NGO symbols and emblems are registered as national, regional, or international trademarks.Footnote 67 This situation raises a plurality of protection regimes and requires us, in each case, to ask whether or not the symbol or emblem is registered and, if the answer is positive, to ask in which categories it has been placed.
In the case of the ICRC, it is evident that it is an organization with a very peculiar status that is different from that of other NGOs, as it is linked to a series of immunities and privileges that have been recognized in the states where it operates. In addition, given its importance and the impact of its use, the ICRC’s emblems have been given special consideration and, as seen above, are the subject of international standards (the Geneva Conventions and their Additional Protocols) as well as national and internal laws and regulations (the Regulations, the Model Law and, for example, the General Organic Regulations of the Spanish Red Cross Footnote 68) that both determine its use and safeguard it.
use by a third party without authorization
The possibility of use by a third party without authorization refers to the situation in which the emblem is used by those who have not been authorized to mark a certain activity or product with it. Here, we are confronted with a situation where the organization’s burden will be the establishment of a prohibition of use. If there is no specific national standard that contemplates the infringement in question, we must resort to application of the international legal rules contained in the Geneva Conventions. Thus, anyone who intends to establish a prohibition against a certain third-party use must do so by urging the application of international law, specifically Article 53 of Geneva Convention I, which states:
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.Footnote 69
This standard is the core of the emblem’s international protection in this type of situation, guaranteeing its uniform treatment in all legal systems.
application for, or registration as, a trademark by a third party
Unlike other NGOs, the ICRC has not generally opted to register its emblem as a trademark for the purpose of promoting specific protection of it, which means that, in most cases, protection of this asset is limited to applications for denial or cancellation of registration pursuant to trademark and industrial design law. In this regard, we should point out that such protection is not normally limited to applications or registrations of an emblem identical to that of the ICRC. Case law and the usual practice of national trademark registration offices show us that protection in this field usually only requires an application or registration of a trademark that in some way imitates the ICRC’s emblem.Footnote 70 However, it is not only imitation of the emblem that determines such protection, but the category under the Nice Classification for which the application has been filed or the trademark has been registered.Footnote 71 In other words, protection by denial or cancellation of registration is not only conditioned by the fact of imitation but also by the possible link between the activity in connection with which the trademark is to be used and the activities carried out by the ICRC.
Such denials of registration on the part of national registry offices are common, and their justification is the infringement of international, regional, or national norms that prohibit registration of certain symbols and emblems as trademarks due to the public interest they represent. However, this does not prevent the occurrence of cases in which registration offices permit registration of a trademark that may, in some cases and in some way, imitate or be similar to the ICRC’s emblem. There is a diversity of jurisprudence in this regard, stemming from cases in which the ICRC has petitioned for cancellation of a registered trademark.Footnote 72 The legal foundation for such petitions is usually the failure of the relevant registration office to apply the rules contained in the Geneva Conventions, specifically Article 53 of Geneva Convention I, as well as certain criteria invoked at the organization’s discretion. This shows how the ICRC’s emblem is treated as a trademark, forgetting that this asset does not possess such a nature. Therefore, the determination of issues such as the similarity between the trademark and the emblem and the risk of confusion must be assessed while taking the emblem’s special character into account. Regarding this issue, the competent national courts have shown a certain reluctance to cancel trademarks as requested by the organization. Indeed, in some cases, national courts have rejected the ICRC’s claim on the basis that imitation must be verifiable, both in the mind of the registrant and as a matter of design,Footnote 73 and that confusion between the trademark and the emblem must be the product of a true association between the two in the public’s eye.Footnote 74
Conclusion
When the symbol or emblem of a NGO is not registered as a trademark, and in the absence of a uniform system as formulated by Article 6ter(1)(b) of the Paris Convention (which only protects the symbols and emblems of IOs and which is not applicable in this case), each national system presents different and independent methods of protection that can only be exercised through denial or cancellation of registration in accordance with the rules of the state where protection is required. In the European Union (EU), however, when it is a matter of denying or cancelling the registration of a European trademark that reproduces or mimics the symbol or emblem of a NGO, there is also a single protection system applicable throughout the territory of the EU. But, otherwise, when symbols and emblems retain their original legal nature (as in the case of the emblem of the ICRC), protection is reduced to seeking denial or cancellation of registration through national protection models based on the application of the Geneva Conventions.
If, however, we refer to protection of a NGO’s symbols and emblems that have been registered as trademarks, we must distinguish between protection of this category of intangible assets when there is no applicable international standard, when such a standard exists, or when the registration is regional in nature — for example, an EU trademark. In the first case, in the absence of international standards, protection will be based on the application of the national trademark laws of the relevant country; this law will also determine the appropriate, or competent, forum, and the related rules of private international law will determine which law is available and applicable for purposes of protection. In the second case, protection derives from the application of the relevant international standards, such as the Paris Convention, the Agreement on Trade-Related Aspects of Intellectual Property Rights,Footnote 75 the Madrid Agreement Concerning the International Registration of Marks and its Protocol,Footnote 76 the Nice Agreement,Footnote 77 and the Trademark Law Treaty. Footnote 78 In such cases, one must take into account all of the principles included in these sources that contribute to the protection of the NGO’s symbols or emblems — for example, those assimilating unionist and national rules or those providing for priority. Finally, in the case of a regional title — for example, a European trademark registered as such in the EU — the owner of the trademark owns a right that can be enforced throughout the EU pursuant to a legal regime found in the rules of EU law that are applicable according to each situation.Footnote 79
In relation to the emblem of the ICRC, it must be noted that application of Article 6ter of the Paris Convention to its protection is impossible since the ICRC is considered to be a NGO and its nature does not meet the “intergovernmental” requirement established by this norm. To understand it in any other way would be an overly broad interpretation of the norm that does not align with its spirit. In addition, the Paris Convention itself specifically excludes all those emblems that are already protected by other international texts from the scope of Article 6ter(1)(b) in fine. This is the case with the ICRC’s emblem. Since we must also consider that this rule was expressly made with the emblem of the ICRC in mind, there is no doubt that the intention of the drafters of the Paris Convention was to leave this emblem outside its scope, with the certainty that its protection was ensured through application of the Geneva Conventions.
Finally, regarding issues of private international law, when protection is required outside the use that the member organizations of the International Movement are allowed to make of the emblem, such protection must be understood in the terms set forth in the previous paragraph since, unlike the symbols and emblems of other NGOs (such as that of the International Olympic Committee), that of the ICRC is not usually registered as a trademark and, therefore, is always protected on the basis of its inherent nature. The different ways in which this symbol is protected against use by third parties, when compared to other symbols and emblems, can be explained, on the one hand, by the fact that the Geneva Conventions offer universal protection with a concrete and secure framework and, on the other hand, by the fact that the national societies, unlike other NGOs, do not routinely use their emblem in commercial relations as an instrument of exchange and, therefore, its registration as a trademark is unnecessary.
