TMEP 1205.01(d)(iii): Other Refusals

This is the October 2015 Edition of the TMEP

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1205.01(d)(iii)    Other Refusals

If a mark containing matter that would be perceived as the Swiss coat of arms or Swiss flag also includes other Swiss indicia, such as the wording “Switzerland” or “Swiss,” or foreign equivalents, the examining attorney should consider whether the primary significance of the mark as a whole is geographic. If so, a refusal under Trademark Act §2(e)(2) (geographically descriptive) or §2(a)/§2(e)(3) (geographically deceptive/primarily geographically deceptively misdescriptive) may be appropriate, in addition to refusals under §§1 and 45 and/or §2(b). For detailed information regarding the examination procedures relating to geographic refusals, see TMEP §§1210-1210.07(b).

Like the Swiss coat of arms and the Swiss flag, the Red Cross features an upright equilateral cross and the colors red and white. However, the color scheme in the Red Cross is reversed, displaying the cross in red and the background in white. The Red Cross is also protected by federal statute, and marks containing this matter may be subject to refusals under Trademark Act §§1 and 45 (not in lawful use) and §2(a) (false suggestion of a connection with the American National Red Cross). See 18 U.S.C. §706. If the mark contains an equilateral cross, but the application does not provide a clear indication of the colors that appear in the mark, examining attorneys should consider whether a refusal on the basis that the mark appears to contain the Red Cross may be appropriate. For additional information, see TMEP §1205.01.

Refusals for failure to function as a trademark or service mark, 15 U.S.C. §§1051, 1052, 1053, 1127 (see also TMEP §§12.2, 1301.02(a)), or for likelihood of confusion, 15 U.S.C. §1052(d), may also apply to these marks.