TMEP 1205.01(d)(i)(C): When a Refusal Under Sections 1 and 45 Should Not Be Issued

October 2017 Edition of the TMEP

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1205.01(d)(i)(C)    When a Refusal Under Sections 1 and 45 Should Not Be Issued

Even if the mark contains an element composed of an upright equilateral cross on a triangular shield, the examining attorney should not issue a refusal under §§1 and 45 if any of the following conditions exist:

  • the applicant specifies that the mark was in use on or before August 31, 1948;
  • the coat of arms shown in the mark is significantly altered, stylized, or merged with other elements in the mark, so as to create a different commercial impression from the actual Swiss coat of arms;
  • the drawing is not in color, there is no color claim, the mark description has been omitted or does not reference color, and the application contains a color specimen that shows the relevant matter in a color scheme other than white and red; or
  • the drawing is in color and shows the cross and triangular shield in a color scheme other than white and red. In this situation, a refusal should not issue, even if the color claim, mark description, or specimen indicates that the cross and shield appear in the prohibited color scheme. Instead, to address the discrepancy between the drawing and the other information in the application record, the examining attorney must require a corrected color claim, an amended mark description, and/or a matching specimen, as appropriate. In addition, the examining attorney should provide an advisory indicating that the use of the Swiss coat of arms in the white and red color scheme is prohibited by federal law and that, if the applicant amends the drawing to show the cross in white and the shield in red, the mark will be refused under Trademark Act §§1 and 45.

The refusal should not be issued even if the cross is white and the shield is red.