Why was it formerly illegal to use the Swiss coat of arms in the United States?

Question

18 U.S.C. § 708 formerly made the unauthorised commercial usage of the Swiss coat of arms (the white cross on a red field) a criminal offense in the United States. It was repealed this year, but why was it ever law in the first place, making it the only country or entity in the US ever to have protection for its heraldic devices?

Answer 1

I don't know any specific on the US law, but a special protection of the Swiss coat of arms is very widespread. This comes from a provision in Art. 53 § 2 of the First Geneva Convention 1949:

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.

Because of the connection of the Red Cross and the Swiss coat of arms the US is obliged by international public law to prohibit the commercial use of that arms.

I'm surprised to hear that law was repealed. Maybe it was transferred to some other place in the code? Often it is regulated next to the prohibition of the misuse of the Red Cross.

Answer 2

This is one of a zillion laws (re)-passed as public law 722 in 1948, which created title 18. It is part of a larger set of laws, 18 USC Ch 33, pertaining to emblems, names and insignias, specifically prohibiting "misappropriation" of government symbols, and other kinds of deceptive behavior. It would be surprising if there were any committee reports on why such a law was found to be desirable, from whenever the first version was passed. This discussion sheds no historical light, except to say that there is no evidence that it was ever enforced.

Answer 3

Prior to its repeal, the statute was as follows (incidentally, the statute section number was changed after its original enactment; 18 U.S.C. § 708 was formerly the section of the federal criminal code applicable to mail theft):

Whoever, whether a corporation, partnership, unincorporated company, association, or person within the United States, willfully uses as a trade mark, commercial label, or portion thereof, or as an advertisement or insignia for any business or organization or for any trade or commercial purpose, the coat of arms of the Swiss Confederation, consisting of an upright white cross with equal arms and lines on a red ground, or any simulation thereof, shall be fined under this title or imprisoned not more than six months, or both.

This section shall not make unlawful the use of any such design or insignia which was lawful on August 31, 1948.

The exception probably protected the Victorinox Swiss Army Knife trademark which was in use already at the time that the statute was enacted, and didn't undermine the statute's primary purpose.

The prohibition is probably to prevent this symbol from being used in a way that causes it to be confused with the Red Cross, an international symbol for peaceful humanitarian activity and medical care, which has relevance under the Geneva Conventions and customary international law of war crimes that compel refraining from harming people who are sincerely using it in most circumstances, because it uses the same colors in the opposite places of same form. As noted below, one of just two reported appellate cases discussing the statute suggests this reading of the statute.

It could also have been to prevent its misleading use to convey the message of the Swiss emblem itself, which is a symbol of political neutrality, in a way that could mislead and disadvantage the U.S. military if utilized by enemy forces, because usually, U.S. military forces are not supposed to open fire on neutral nations. Almost no other country has such a long standing and universally recognized policy of political neutrality, so there are no other national symbols that would convey a similar message.

Another answer, also aptly suggests that this may have been a treaty obligation of the U.S. to enact under Art. 53 § 2 of the First Geneva Convention 1949, which is a mix of both reasons.

The most recent case to discuss the provision (found in a dissenting opinion of esteemed U.S. Court of Appeals Judge Posner, interpreting another statute) was very critical of it, noting that:

The federal criminal code contains thousands of separate prohibitions, many ridiculously obscure, such as the one against using the coat of arms of Switzerland in advertising, 18 U.S.C. § 708, or using “Johnny Horizon” as a trade name without the authorization of the Department of the Interior. 18 U.S.C. § 714.

U.S. v. Wilson, 159 F.3d 280, 294 (7th Cir. 1998) (dissenting opinion).

The opinion of esteemed U.S. Court of Appeals Judge Easterbrook in the same year also illuminates a possible purpose for the statute, in dicta, and favors my first explanation:

The Red Cross has exclusive rights to “Red Cross”, see 18 U.S.C. § 706, and to fortify this exclusivity Congress prohibited newcomers from using the Swiss Confederation coat of arms, 18 U.S.C. § 708.

Am. Legion v. Matthew, 144 F.3d 498, 499 (7th Cir. 1998).

Incidentally, my use of the word "esteemed" to describe these judges is not just a general courtesy. These are two of perhaps a dozen superstar appellate judges in the entire United States in the history of U.S. jurisprudence who didn't serve on the U.S. Supreme Court, and are household names among lawyers and legal scholars in the U.S. Posner is a leading moderately conservative jurists known especially for his law and economics jurisprudence. Easterbrook is a well regarded and well spoken moderate justice.