1205.01(d)(ii) Refusal Under §2(b): Swiss Flag or Swiss Coat of Arms
Trademark Act §2(b) prohibits registration on the Principal Register or Supplemental Register of a mark that consists of or comprises the flag or coat of arms of a foreign nation. 15 U.S.C. §1052(b); see TMEP §§1204-1204.05. In determining whether a mark must be refused under §2(b), the relevant question is whether consumers will perceive matter in the mark as a flag or coat of arms. See In re Family Emergency Room LLC, 121 USPQ2d 1886, 1888 (TTAB 2017); TMEP §1204.01(a).
Section 2(b) also prohibits registration of any simulation of a foreign nation’s flag or coat of arms. 15 U.S.C. §1052(b); see In re Family Emergency Room LLC, 121 USPQ2d at 1887; TMEP §1204.01(a). As previously noted, a "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); see TMEP §1204.
Whether particular matter is a simulation of a flag or coat of arms is determined by a visual comparison of the matter and the actual flag or coat or arms. See In re Waltham Watch Co., 179 USPQ 59, 60 (TTAB 1973); TMEP §1204. The focus of the analysis is on the relevant purchasers’ general recollection of the flag or coat of arms, "without a careful analysis and side-by-side comparison." In re Advance Indus. Sec., Inc., 194 USPQ at 346. See TMEP §1204.01(a) for examples of flag simulations.
The examining attorney should consider the following factors when determining whether matter in a mark will be perceived as the Swiss coat of arms or Swiss flag:
- the colors, if any, that appear in the matter;
- the stylization of the matter and its relationship to other elements in the mark;
- the presence of any words or other designs on the drawing that might create or reinforce the impression that the matter is the Swiss flag or Swiss coat of arms; and
- the presentation and use of the mark on the specimen of record, if one is provided. See In re Family Emergency Room LLC, 121 USPQ2d at 1888; TMEP §1204.01(a).
The determination of whether a refusal under §2(b) must issue should be based on how the mark is displayed in the drawing, described in the application, or used in the specimen of record. See In re Family Emergency Room LLC, 121 USPQ2d at 1888. Extrinsic evidence of applicant’s use of the mark should not be considered.