1205.01(d)(ii)(C) When a Refusal Under §2(b) Should Not Be Issued
Even if the mark contains an upright equilateral cross on a square, a rectangle, or a triangular shield (or simulation thereof), a §2(b) refusal should not be issued if any of the following conditions exist:
- the flag or coat of arms shown in the mark is sufficiently altered, stylized, or merged with other elements in the mark, so as to create a distinct commercial impression;
- the drawing is not in color, there is no color claim, the mark description does not reference color (or there is no mark description), 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 square/rectangle/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 square/rectangle/shield appears 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, under §2(b), the Swiss flag and Swiss coat of arms may not be registered as a trademark or service mark and that, if the applicant amends the drawing to show the cross in white and the square, rectangle, or shield in red, the mark will be refused under Trademark Act §2(b).