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Swiss Army Knife

The first Swiss Army knife was a product of the fertile mind of Karl Elsener, assisted by the technology of thirty local cutlers working under him. In 1884, Elsener, set up shop in Ibach-Schwyz, installing a waterwheel in Tobelbach Brook to run his grinding and polishing machines to manufacture of surgical instruments and cutlery. Thus began what became the international brand name Victorinox, a combination of Victoria, for Elsener's mother, and "inox," or stainless steel.

Elsener was disturbed to learn that the Swiss army was importing Solingen blades. He produced the Soldiers' knife in 1891 and followed that with the Officers' knife in 1897. These were compact and sturdy knives, which offered many functions combined in a single tool. The original Soldier Knife included a sharp, strong punch designed to repair a horse's leather harness, a screwdriver that disassembles a rifle for cleaning, a can opener to pry the lid off a tin of food, and a large blade. Combined, the implements provided the perfect multi-tool knife for the modern infantryman.

Both amateurs and professionals are well served on occasion by compact versatile tools, in place of a group of individual specialized ones, as is confirmed by the almost legendary Swiss Army Knife. The most famous multifunction tool is the Swiss Army Knife which has a variety of instruments, each for a different purpose, rotatably attached within a case or housing that serves as a handle. See in particular German patent No. 30788 issued Mar. 12, 1885 to Klever. The design of such tools always involves compromises in the selection of instruments, their size and range of motion, and how they are to be deployed. Many combination tools are thus limited to having instruments for a particular purpose, such as grooming. Some combination tools having a great many instruments are simply poor substitutes for full size tools from a tool box.

The folding blade combination tool is probably best exemplified by the Swiss army knife. These types of tools are limited by two factors. First, the blades cannot be locked positively enough to utilize both sides of the blades. Conventional locking mechanisms are complicated and costly. Secondly and most significantly, these tools are inherently weak at the junction of the blade and the handle, thus restricting the force capable of being transmitted relative to the mass of the tool.

Victorinox A.G. and Wenger S.A., (both Switzerland corporations) are the exclusive manufacturers of SWISS ARMY multifunction pocketknives. The Swiss military required two sources for the soldiers knife, and thus, it purchases half of its supply thereof from Wenger S.A. and half from Victorinox A.G. Swiss Army Brands, Inc. (SABI) is Victorinox A.G.s exclusive distributor of knives in the United States, and Precise Imports, Inc. (Precise) is Wenger S.A.s exclusive distributor of knives in the United States. This is based on a Trademark Agreement between the Swiss Confederation and SABI.

Victorinox A.G. and Wenger S.A., are both located in Switzerland. Victorinox A.G. (under a different name) was founded in 1884 by Karl Elsener; and he also founded the Association of Swiss Master Cutlers consisting of a few small enterprises in the knife manufacturing business, in order to obtain an order from the Swiss military for knives for each soldier. Today, the Association of Swiss Master Cutlers has over fifty members, and both businesses are still members thereof.

In 1891 the first order from the Swiss military for pocketknives with multiple utensils thereon was filled. The knife was and is called the soldiers knife. Victorinox A.G. first sold knives in the United States in 1936 or 1937, and in 1952 it first sold knives through its U.S. distributor, Forschner (now SABI). American GIs coined the nickname Swiss Army knife for these multifunction pocketknives after World War II. It was in 1952 that Victorinox A.G. first used SWISS ARMY on and in connection with its pocketknives. Victorinox A.G.s sales of pocketknives in the United States is in the millions of units per year.

Wenger S.A. was founded in 1893 under the name Coutellerie Suisse, and in 1907 was renamed Wenger. It first sold the soldiers knife to the Swiss military in 1901 (this may have occurred earlier, but, due to a fire, its records trace back only to 1901). Today, Wenger S.A. manufactures several types of knives, including various models of multifunction pocketknives (80% of Wengers business) and professional cutlery (such as for chefs, gardeners). Wenger S.A. first sold multifunction pocketknives in the United States in 1949. Since then, Precise has been Wenger S.A.s distributor of knives in the U.S. Wenger S.A.s sales of pocketknives in the United States are also in the millions of units per year.

Arrow Trading Co., Inc. first used Swiss Army in connection with multifunction pocketknives on purchase orders and invoices in the late 1980s and first used it on opposers packaging and on the knives around 1992; and that for the year 1992-1993 opposer sold about 8,000 units. In 1991 Arrow ordered, inter alia, about 20,100 multifunction pocketknives from a company located in Hong Kong. After 1993, Arrow Trading Group, Inc. and Classic Knife Corporation sold imported pocketknives which did not display Swiss Army on the handles of the knives or on the packaging therefor; but that these goods were marketed using Swiss Army knife.

In the case of The Forschner Group, Inc. v. Arrow Trading Co., Inc., the issues were very narrow and were so explained by the courts, beginning with the first decision of September 29, 1993, in which the U.S. District Court for the Southern District of New York stated This action involves only a small slice of the law of unfair competition. The existence of a trademark is not at issue. 833 F.Supp. at 388. The issue in that case was whether Arrows representation of the Chinese knife as a Swiss Army knife misleads consumers as to the geographic origin and the quality of the Chinese knife.

The Court noted that: Arrow, rather than focusing upon these issues, has directed its energies in an attempt to prove that Swiss Army knife is a generic term denoting any multifunction pocketknife. ... ...Arrow rivets itself to the notion that Swiss Army knife cannot receive trademark protection if it is a generic term. (Citations omitted.) However, Forschner does not seek trademark protection in this action, but attempts to stop Arrow from misrepresenting the Chinese knife.... 833 F.Supp. at 392. ...Arrow still has failed to demonstrate that Swiss Army knife is a generic term. 833 F.Supp. at 395.

After remand from the 1994 decision of the Court of Appeals for the Second Circuit, the U.S. District Court reiterated: My underlying decision held that the existence of a trademark is not an issue. (Citation omitted.) The Court of Appeals agreed. (Citation omitted.) The phrase Swiss Army knife has never enjoyed trademark protection, as Forschner readily concedes in its complaint. (Footnote omitted.) Because the issue was not presented, it was never reached, and the Court of Appeals left unanswered the question of whether the mark is registrable. 904 F.Supp. at 1414.

Arrow later adopted the word classic to modify the mark SWISS ARMY, thereby exploiting the standard English meaning of classic and thus, affirmatively recognizing the trademark significance of the words SWISS ARMY. The packaging for its Chinese made pocketknives used a TM symbol and stated on the packaging that the Swiss Army logo design is a trademark used by opposer under license. The use of the word classic with the words SWISS ARMY was held by the United States District Court for the Southern District of New York (order dated June 26, 1996) to be in contempt of a previous injunction order, specifically finding that Arrow Trading Co., Inc. was attempting to piggyback on the plaintiffs goodwill and that Arrow acted in bad faith.

This was followed by the filing of its notice of opposition in 1996, through briefing and decision on summary judgment motions which included arguments and issues related to opposers standing (1997-2000), through trial (2001- 2002), and even through briefs after trial (2002) and oral hearing (2003).

The Swiss government placed Victorinox A.G. and Wenger S.A. into a cooperative relationship by requiring each to share the franchise of making knives for the Swiss military about 100 years ago; and applicants have never disagreed about the rights of each other in the mark SWISS ARMY for knives. these two corporations for over 100 years have never disputed their shared rights in the mark SWISS ARMY; that for over 50 years they have been the only sources of SWISS ARMY brand pocketknives in the United States; that they both use the same suppliers of the materials (e.g., steel, aluminum) needed to make SWISS ARMY multifunction pocketknives; that they make the soldiers knife to identical specifications (as required by the Swiss military) and, by agreement between the companies, they make all SWISS ARMY brand pocketknives to the same specifications.

In addition, Victorinox A.G. and Wenger S.A. cooperate not only on the specifications for manufacturing SWISS ARMY brand pocketknives, but also on the quality control of the pocketknives they produce; and they cooperate in enforcing their trademark rights as against third parties. Protecting the mark SWISS ARMY for knives in the name of the only producers of authentic SWISS ARMY knives furthers the basic premises of trademark law of preventing consumer confusion and protecting the owners rights. These two entities have an agreement regarding quality of the goods and the use of the mark SWISS ARMY.

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Page last modified: 07-06-2013 18:37:15 ZULU