1204 Refusal on Basis of Flag, Coat of Arms or Other Insignia of United States, State or Municipality, or Foreign Nation
Extract from 15 U.S.C. 1052. No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it ... (b) Consists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof.
Section 2(b) of the Trademark Act, 15 U.S.C. 1052(b), bars the registration on either the Principal Register or the Supplemental Register of marks that consist of or comprise (whether consisting solely of, or having incorporated in them) the flag, coat of arms, or other insignia of the United States, of any state or municipality, or of any foreign nation. Section 2(b) also bars the registration of marks that consist of or comprise any simulation of such symbols.
Section 2(b) differs from the provision of §2(a) regarding national symbols (see TMEP §1203.03(b)) in that §2(b) requires no additional element, such as disparagement or a false suggestion of a connection, to preclude registration.
Flags and coats of arms are specific designs formally adopted to serve as emblems of governmental authority. The wording "other insignia" should not be interpreted broadly, but should be considered to include only those emblems and devices that also represent such authority and that are of the same general class and character as flags and coats of arms. The Trademark Trial and Appeal Board has construed the statutory language as follows:[T]he wording "or other insignia of the United States" must be restricted in its application to insignia of the same general class as "the flag or coats of arms" of the United States. Since both the flag and coat of arms are emblems of national authority it seems evident that other insignia of national authority such as the Great Seal of the United States, the Presidential Seal, and seals of government departments would be equally prohibited registration under Section 2(b). On the other hand, it appears equally evident that department insignia which are merely used to identify a service or facility of the Government are not insignia of national authority and that they therefore do not fall within the general prohibitions of this section of the Statute.
In re U.S. Department of the Interior, 142 USPQ 506, 507 (TTAB 1964) (logo comprising the words "NATIONAL PARK SERVICE" and "Department of the Interior," with depiction of trees, mountains and a buffalo, surrounded by an arrowhead design, held not to be an insignia of the United States).
Letters that merely identify people and things associated with a particular agency or department of the United States government, instead of representing the authority of the government or the nation as a whole, are generally not considered to be "insignia of the United States" within the meaning of §2(b). The Board, in dismissing an opposition to the registration of "USMC" in a stylized presentation, for prostheses, fracture braces andorthopedic components, discussed the meaning of "insignia" under §2(b), as follows:
The letters "USMC" are nothing like a flag or coat of arms. These types of insignia are pictorial in nature, they can be described, but cannot be pronounced. Even if the letters could be construed to be an insignia, opposer has not shown that they would be seen as an insignia of the United States.
U.S. Navy v. U.S. Mfg. Co., 2 USPQ2d 1254, 1256 (TTAB 1987). As a result of the enactment of Public Law 98-525 on October 19, 1984, the initials, seal and emblem of the United States Marine Corps are "deemed to be insignia of the United States," under 10 U.S.C. §7881, pertaining to unauthorized use of Marine Corps insignia. However, "USMC" was not so protected when the applicant began using its stylized version of those letters as a mark. In view of the provision in Public Law 98-525 that the amendments adding Chapter 663 (10 U.S.C. §7881) shall not affect rights that vested before the date of its enactment, the majority of the Board found that enactment of the law did not adversely affect the mark's registrability, stating that "opposer has not shown that applicant's mark was an insignia of the United States prior to the law making it one, or that the law effectively bars registration to applicant." Id. at 1260. (See TMEP §1205.01 regarding subject matter that is protected by statute.)
See also Liberty Mutual Insurance Co. v. Liberty Insurance Co. of Texas, 185 F. Supp. 895, 908, 127 USPQ 312, 323 (E.D. Ark. 1960) ("That the Statue of Liberty is not a part of the 'insignia of the United States' is too clear to require discussion.")
As stated above, marks that consist of or comprise any simulation of the flag, coat of arms, or other insignia of the United States, of any state or municipality, or of any foreign nation are also unregistrable under §2(b). "Simulation," as contemplated by §2(b), refers to "something that gives the appearance or effect or has the characteristics of an original item." In re Waltham Watch Co., 179 USPQ 59, 60 (TTAB 1973) (mark consisting of wording and the design of a globe and six flags for watches found registrable, the Board stating, "[A]lthough the flags depicted in applicant's mark incorporate common elements of flag designs such as horizontal or vertical lines, crosses or stars, they are readily distinguishable from any of the flags of the nations alluded to by the examiner. In fact, applicant's mark would be regarded as nothing more than a conglomeration of nondescript flags utilized to symbolize the significance of the globe design and the slogan 'TIMING THE WORLD' appearing thereon.") Whether a mark comprises a simulation must be determined from a visual comparison of the mark vis-ˆ-vis replicas of the flag, coat of arms or other insignia in question. Id.
The determination of whether a proposed mark consists of or comprises a flag, coat of arms or other insignia must be made "without a careful analysis and side-by-side comparison." In re Advance Industrial Security, Inc., 194 USPQ 344, 346 (TTAB 1977) (ADVANCE SECURITY and design consisting of an eagle on a triangular shield, in gold and brown, for detective and investigative services and providing security systems and services, found registrable, the Board stating, "When the mark of the applicant and the Coat of Arms or Great Seal of the United States are compared in their entireties, it is adjudged that applicant's mark does not consist of or comprise the Coat of Arms of the United States or any simulation thereof ....") The public should be considered to retain only a general or overall, rather than specific, recollection of the various elements or characteristics of design marks. Id.
The incorporation in a mark of individual or distorted features that are merely suggestive of flags, coats of arms or other insignia does not bar registration under §2(b). See Knorr-Nahrmittel A.G. v. HavlandInternational, Inc., 206 USPQ 827, 833 (TTAB 1980) (While applicant originally may have intended to include the flags of the Scandinavian countries in the mark, NOR-KING and design, "[a]ll that the record reflects is that the mark contains a representation of certain flags, but not the flag or flags of any particular nation." Opposer's cause of action under §2(b) found to be without merit; opposition sustained on other grounds); In re National Van Lines, Inc., 123 USPQ 510 (TTAB 1959) (mark comprising words and the design of a shield with vertical stripes held registrable, the Board finding the design to be readily distinguishable from the shield of the Great Seal of the United States and, therefore, not a simulation of the seal or any portion thereof); In re American Box Board Co., 123 USPQ 508 (TTAB 1959) (design mark comprising an eagle and shield held registrable, the Board finding that it did not involve a simulation of the Great Seal of the United States because the eagle and shield of applicant's mark differed substantially from those on the seal in both appearance and manner of display).
See TMEP §§1205 et seq. regarding matter that is protected by statute or by Article 6ter of the Paris Convention.
To overcome a refusal under §2(a) or §2(b), deletion of the unregistrable matter is sometimes permitted. See TMEP §807.14(a) regarding removal of matter from drawings.