TMEP 1204.01(a): Flags and Simulations of Flags are Refused

October 2017 Edition of the TMEP

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1204.01(a)    Flags and Simulations of Flags are Refused

Registration must be refused under §2(b) if the design sought to be registered includes a true representation of the flag of the United States, any state, municipality, or foreign nation, or is a simulation thereof. A refusal must be issued if the design would be perceived by the public as a flag, regardless of whether other matter appears with or on the flag. In re Family Emergency Room LLC, 121 USPQ2d 1886, 1887-88 (TTAB 2017). The examining attorney should consider the following factors, in regard to both color drawings and black-and-white drawings, to determine whether the design is perceived as a flag: (1) color; (2) presentation of the mark; (3) words or other designs on the drawing; and (4) use of the mark on the specimen(s). Cf. id. at 1888 (discussing the factors to consider in determining whether matter in a mark will be perceived as the Swiss flag).

Generally, a refusal should be made where a black-and-white drawing contains unmistakable features of the flag, contains features of the flag along with indicia of a nation, or is shown on the specimen in the appropriate colors of that national flag. For example, merely amending a "red, white, and blue" American flag to a black-and-white American flag will not overcome a §2(b) refusal. However, black-and-white drawings of flags that consist only of common geometric shapes should not be refused unless there are other indicia of the country on the drawing or on the specimens. For example, a black-and-white drawing showing three horizontal rectangles would not be refused as the Italian or French flag unless there is something else on the drawing or on the specimen that supports the refusal.

Examples of Situations Where Registration Should Be Refused. The following are examples of situations where registration should be refused, because all significant features of the flag are present or a simulation of the flag is used with state or national indicia:

American flag in oval with bunting on sides and the words "Schenk Fuels Services"
Italian flag and cup with words "Buon Giorno Caffe" on it
Man waving American flag
Man holding American flag with words "Victorious America" above it
American flag with words "American Hot Sauce" on it
Doctor and American flag
Italian flag with words "That's Italian" above it.

The wording "That’s Italian" emphasizes that the banner design is a simulation of a flag.

Swiss flag with words "Swiss Guard" below it

This design is refused because the word SWISS emphasizes that the design is intended to be a simulation of the Swiss flag.

Texas flag and guitar with words "Texas Rock Association"

This black-and-white mark is refused because the word Texas emphasizes that the design is intended to be the state flag of Texas.

See TMEP §§1205.01(d)-1205.01(d)(iii) regarding procedures for marks containing the Swiss Confederation coat of arms or flag.