1205.01(a)(iv) Applicable Refusals
The statute prohibiting use of the Red Crystal and Red Crescent symbols by unauthorized parties applies to "any sign or insignia made or colored in imitation thereof." 18 U.S.C. §706a. If the mark includes a design element where the color red is claimed, and the design would be likely to be perceived as the Red Crystal symbol or the Red Crescent symbol, and it is not significantly altered, stylized, or merged with other elements in the mark, the examining attorney must refuse registration under §§1 and 45, because the mark is not in lawful use in commerce, and under §2(a), if any of the following conditions exist:
- the drawing or foreign registration shows the symbol in red;
- the drawing is not in color, but the specimen shows the symbol in red; or
- the drawing is not in color, but it includes the wording "Red Crescent" or "Third Protocol Emblem."
See TMEP §§1205.01(a) and 1205.01(a)(i). The refusals may be withdrawn if the applicant amends the drawing to a different, non-prohibited color scheme, or a non-color version of the drawing (i.e., a black-and-white or gray scale drawing) or submits a proper substitute specimen showing use of the mark in a color other than red. Cf. TMEP §§1205.01(d)(i)(D), 1205.01(d)(ii)(D). However, a photocopy of the original specimen is not an acceptable substitute specimen.
A mark that includes a crescent or crystal design element will generally be considered registrable, and will not be refused under §§1 and 45, or under §2(a), if the applicant does not claim color as a feature of the mark and the specimen shows the symbol in a color other than red. In such cases, a statement that the mark is not used in the color red is unnecessary, and if submitted, must not be printed on the registration certificate.
Regarding the phrases "Red Crescent" and "Third Protocol Emblem," the statute prohibiting use of these designations does not apply to variations or modifications of these words. Only marks that include the exact wording RED CRESCENT or THIRD PROTOCOL EMBLEM, with or without additional wording, must be refused under §2(a) and §§1 and 45.
For example, REDCRESCENTS would not be refused registration, but RED CRESCENT DONOR could be refused registration if the date of first use is after December 8, 2005, or the application otherwise fails to qualify for the grandfather clause described in TMEP §1205.01(a)(ii).