TMEP 1204: Refusal on Basis of Flag, Coat of Arms, or Other Insignia of United States, State or Municipality, or Foreign Nation
October 2017 Edition of the TMEP
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1204 Refusal on Basis of Flag, Coat of Arms, or Other Insignia of United States, State or Municipality, or Foreign Nation
15 U.S.C. §1052 (Extract)
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 of the United States, or of any foreign nation. See Ceccato v. Manifattura Lane Gaetano Marzotto & Figli, S.p.A., 32 USPQ2d 1192, 1196 (TTAB 1994) (noting that "it would appear that the reference to ‘municipality’ in the Statute is to a municipality in the United States, and that prohibition of registration with respect to foreign coats of arms, etc., is to those of the countries themselves, rather than to those of the states or municipalities of the foreign countries"). Moreover, registration of all such official insignia is barred regardless of the identity of the applicant, that is, the statutory prohibition allows no exception even when the applicant is a government entity seeking to register its own flag, coat of arms, or other insignia. In re City of Houston, 731 F.3d 1326, 108 USPQ2d 1226 (Fed. Cir. 2013).
Section 2(b) also bars the registration of marks that consist of or comprise any simulation of such symbols. See In re Shabby Chic Brands, LLC, 122 USPQ2d 1139 (TTAB 2017) (affirming §2(b) refusal on the ground that the applied-for mark was a simulation of the Prince of Wales’ official emblem). "Simulation" refers to "something that gives the appearance or effect or has the characteristics of an original item." In re Advance Indus. Sec., Inc., 194 USPQ 344, 346 (TTAB 1977). Whether a mark comprises a simulation must be determined from a visual comparison of the proposed mark vis-à-vis replicas of the flag, coat of arms, or other insignia in question. In re Waltham Watch Co., 179 USPQ 59, 60 (TTAB 1973). Focus must be on the general recollection of the flag or insignia by purchasers, "without a careful analysis and side-by-side comparison." In re Advance Indus. Sec., 194 USPQ at 346.
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. Havland Int’l, Inc., 206 USPQ 827, 833 (TTAB 1980) (holding flag designs incorporated in the proposed mark NOR-KING and design not recognizable as the flags of Denmark, Norway, and Sweden, the Board finding that "[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"); In re Advance Indus. Sec., 194 USPQ at 346 (finding proposed mark comprising a gold and brown triangular shield design with the words "ADVANCE SECURITY" predominately displayed in the upper central portion of the mark "creates an overall commercial impression distinctly different from the Coat of Arms"); In re Waltham Watch Co., 179 USPQ at 60 (finding mark comprising wording with the design of a globe and flags not to be a simulation of the flags of Switzerland and Great Britain, stating that "although 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.").
Section 2(b) differs from the provision of §2(a) regarding national symbols (see TMEP §1203.03(a)(iii)) in that §2(b) requires no additional element, such as a false suggestion of a connection, to preclude registration.