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Examination Guide 2-07

US Trademark Office
Examination Guide 2-07
Section 2(b) - Flags and Government Insignia
Issued November 27, 2007

I.  INTRODUCTION

II.  STATUTORY AUTHORITY

III.  FLAGS AND SIMULATIONS OF FLAGS

A.  Flags and simulations of flags are refused

B.  Case law interpreting "simulation of flag"

C.  Stylized flag designs are not refused

D.  Description of the mark

E.  Flags that are not presently used as national flags

IV.  GOVERNMENT INSIGNIA

A.  Designs that are insignia under Section 2(b)

B.  Case law interpreting insignia under Section 2(b)

V.  OTHER REFUSALS

VI.  RESPONDING TO REFUSAL

A.  Absolute bar to registration

B.  Deletion of Section 2(b) matter

VII.  RESOURCES

A.  Internet Evidence

B.  Non-Registration Data

APPENDIX A - Examples of flags that are not registrable

APPENDIX B - Examples of stylized designs that are registrable

APPENDIX C - Examples of insignia that is not registrable

APPENDIX D - Examples of emblems of national origin that are registrable

APPENDIX E - Examples of when Section 2(b) matter can be deleted

APPENDIX F - Websites containing national and state flags, government insignia, and coat of arms

I. INTRODUCTION

This examination guide addresses issues relating to Section 2(b) of the Trademark Act, which prohibits the registration of any mark that contains a flag, coat of arms, or insignia of the United States, of any state or municipality or of any foreign nation, or any simulation thereof. Section 2(b) differs from the provision of §2(a) regarding national symbols in that §2(b) requires no additional element, such as disparagement or a false suggestion of a connection, to preclude registration.

II. STATUTORY AUTHORITY: 15 U.S.C. §1052(b)

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it ... (b) Consists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof.

III. FLAGS AND SIMULATIONS OF FLAGS

A.  Flags and simulations of flags are refused

Registration must be refused under §2(b) if the design sought to be registered includes a true representation of the flag of the United States, any state, municipality or foreign nation, or is a simulation thereof. A refusal must be issued if the design would be perceived by the public as a flag, whether or not other matter appears with or on the flag. The examining attorney should consider the following factors, in regard to both color drawings and black-and-white drawings, to determine whether the design is perceived as a flag: 1) color; 2) presentation of the mark; 3) words or other designs on the drawing; 4) use of the mark on the specimens. For examples, see Appendix A .

Generally, a refusal should be made where a black-and-white drawing contains unmistakable features of the flag, or contains features of the flag along with indicia of a nation, or is used on the specimen that shows the appropriate colors of that national flag. For example, merely amending a "red, white and blue" American flag to a black-and-white American flag will not overcome a Section 2(b) refusal. However, black-and-white drawings of flags that consist only of common geometric shapes should not be refused unless there are other indicia of the country on the drawing or on the specimens. For example, a black-and-white drawing showing three horizontal rectangles would not be refused as the Italian or French flag unless there is something else on the drawing or on the specimen that supports the refusal.

B.  Case law interpreting "simulation of flag"

The Trademark Trial and Appeal Board found no simulation of a flag existed in the following cases: In re Health Maintenance Organizations, Inc. , 188 USPQ 473 (TTAB 1975) (Dark cross, with legs of equal length, having a caduceus symmetrically imposed thereon is sufficiently distinctive from Greek red cross and flag of Swiss Confederation); In re American Red Magen David for Israel , 222 USPQ 266 (TTAB 1984) ("As to the State of Israel, it is noted that the flag of that nation consists essentially of a light blue Star of David on a white background. In the absence of any evidence that the State of Israel is identified by a six-pointed star in any other color, we conclude that only a light blue six-pointed star would be recognized as the insignia thereof.").

C.  Stylized flag designs are not refused under Section 2(b)

Marks containing elements of flags in a stylized or incomplete form are not refused under Section 2(b). The mere presence of some significant elements of flags, such as stars and stripes (U.S. flag) or a maple leaf (Canadian flag) does not necessarily warrant a refusal. For examples, see Appendix B .

If the flag design fits one of these scenarios, do not refuse registration under Section 2(b):

1.  The flag design is used to form a letter, number, or design.

2.  The flag is substantially obscured by words or designs.

3.  The design is not in a shape normally seen in flags.

4.  The flag design appears in a color different from that normally used in the national flag

5.  A significant feature is missing or changed.

D.  Description of the mark

When a description of the mark is necessary, the description should be clear that the design is a stylized version of the national flag. For example, the statements that "the mark consists of the stylized American flag" or "the mark consists of the stylized American flag in the shape of the letters USA" are acceptable descriptions.

E.  Flags that are not presently used as national flags

Flags of former countries, states, or municipalities are not refused under Section 2(b). For example, the flags of now non-existent countries such as the German Democratic Republic (East Germany) or Yugoslavia are not refused. However, former flags of existing countries, states, or municipalities are refused under Section 2(b). For example, the original flag of the United States representing the 13 colonies should be refused.

IV. GOVERNMENT INSIGNIA

A.  Designs that are insignia under Section 2(b)

The wording "other insignia" should not be interpreted broadly, but should be considered to include only those emblems and devices that also represent governmental authority and that are of the same general class and character as flags and coats of arms. See TMEP §1204 . For examples, see Appendix C .

The following are insignia of the United States for purposes of Section 2(b):

1. Great Seal of the United States

2. Presidential Seal

3. Seals of Government Agencies

B.  Case law interpreting insignia under Section 2(b)

Designs that do not rise to the level of being "emblems of national authority" are not refused. For examples, see Appendix D .

The following cases provide examples of matter that was held not to be government insignia under Section 2(b):

1.  Department insignia that shows a service or facility of a federal department. In re United States Department of the Interior , 142 USPQ 506 (TTAB 1964) (insignia of the National Park Service is registrable.)

2.  Monuments, statues, or buildings associated with the United States such as the White House, Washington Monument, and Statue of Liberty. Liberty Mutual Insurance Co. v. Liberty Insurance Co. of Texas , 185 F. Supp. 895, 908, 127 USPQ 312, 323 (E.D. Ark. 1960) ("That the Statue of Liberty is not a part of the insignia of the United States' is too clear to require discussion.").

3.  Designs of objects used by the U.S. government. In re Brumberger Co., Inc ., 200 USPQ 475 (TTAB 1978) (representation of the US mailbox was held not to be an insignia of the United States. However, the refusal to register the mark under Section 2(a) because of a false connection with the United States Postal Service was affirmed).

4.  Initials or words that identify people or departments of a government agency. U.S. Navy v. United States Manufacturing Co , 2 USPQ2d 1254 (TTAB 1987) (USMC, the initials of the Marine Corps, which is part of the Navy, which itself is within the Department of Defense, cannot be construed as an "other insignia of the United States" under Section 2(b) of the Lanham Act.)

V. OTHER REFUSALS MAY BE APPROPRIATE

Marks that are not barred by Section 2(b) may be refused if prohibited by other sections of the Trademark Act. For example, a design may not be an insignia under Section 2(b) but may be refused under Section 2(a). See, In re Brumberger Co., Inc ., 200 USPQ 475 (TTAB 1978) (representation of the US mailbox was not an insignia under Section 2(b) but was properly refused under Section 2(a) because it falsely suggested a connection with the United States Postal Service). Likewise, Section 2(d) may be a bar to registering a stylized flag that is not prohibited under Section 2(b).

VI. RESPONDING TO SECTION 2(b) REFUSAL

A.  Absolute bar to registration

Because Section 2(b) provides an absolute bar to registration, a disclaimer of the prohibited flag or insignia is not permissible. Likewise, an amendment to seek registration under Section 2(f) or on the Supplemental Register would not overcome the refusal.

The statute does not list any exceptions that would allow for countries, states, or municipalities to register their own flags or insignia. Applications for marks that contain flags, coats of arms, or government insignia, even if filed by the relevant state, country, or municipality, must be refused.

B.  Deletion of Section 2(b) matter

SECTION 1(a) and SECTION 1(b) APPLICATIONS: The deletion of the unregistrable Section 2(b) matter, which no party can have trademark rights in, will not be considered a material alteration if the matter is separable from the other elements in the mark. TMEP §1204 . For example, the flag design is spatially separated from other matter in the mark or is used as a background for other words or designs. If the flag is deleted from the drawing, the specimen that shows the flag is still acceptable. The examining attorney must ensure that the design search codes are corrected whenever a change is made to the drawing. However, no deletion is allowed if the flag design is integrated into the overall mark in such a way that deletion would significantly change the commercial impression of the mark. For examples, see Appendix E .

An amendment to the drawing showing the outline of the flag design absent the interior material is not permitted. Amending the mark from a national, state, or municipal flag to a blank flag changes the commercial impression of how the mark is used, or intended to be used, in commerce.

SECTION 44 APPLICATIONS: Amendments to the drawing to delete Section 2(b) matter are not permitted because the drawing must be a substantially exact representation of the mark as registered in the foreign country. TMEP §1011.01

SECTION 66(a) APPLICATIONS: Amendments to the drawing to delete the Section 2(b) matter are not permitted because the Madrid Protocol does not permit the amendment of a mark that is part of the international registration. TMEP §807.13(b)

VII. RESOURCES

A.  Internet evidence

Many useful websites present images of national and state flags, government insignia, and coats of arms. See Appendix F for a listing of such websites.

B.  Non Registration Data - X-SEARCH and TESS

Article 6 ter of the Paris Convention provides for the notification of flags, coat of arms, and national insignia of member countries. When the USPTO receives notification under Article 6 ter from the IB, they are assigned serial numbers in the "89" series code, i.e. , serial numbers beginning with the digits "89," and are sometimes referred to as "non-registrations." These designs may indicate whether the matter presented for registration in the application under review is a flag, coat of arms, or insignia of a foreign government. TMEP§ 1205.02 .

APPENDIX A

Examples of Flags or Simulations of Flags That Are Not Registrable As Shown Under Section 2(B).

See Examination Guide, Section III (A) .

1.  All Significant Features of the Flags Are Present or Simulation of Flag Is Used With State or National Indicia - Refused

American flag in oval Italian flag and cup

Man waving American flag Man holding American flag

American flag Doctor and American flag

Italian flag

The wording "That's Italian" emphasizes that the banner design is a simulation of a flag.

Swiss flag

This design is refused because the word SWISS emphasizes that the design is intended to be a simulation of the Swiss flag.

Texas flag and guitar

This black-and-white mark is refused because the word Texas emphasizes that the design is intended to be the state flag of Texas.

APPENDIX B

Stylized Designs That Are Registrable Under Section 2(B)

See Examination Guide Section III (C)

1.  Flag Forms Another Design, Number or Letter - No Section 2(B) Refusal

Outline of USA and flag Stars and stripes in square

2.  Flag Is Substantially Obscured By Other Matter - No Section 2(B) Refusal

American flag

3.  Flag Design Is Not In the Normal Flag Shape - No Section 2(B) Refusal

Triangular American flag Two vertical American flags

4.  Significant Feature of the Flag Is In a Different Color - No Section 2(B) Refusal

American flag

NOTE: Stripes in flag are red, white, and green

5.  Significant Feature Is Changed - No Section 2(B) Refusal

American flag

APPENDIX C

Insignia Not Registrable Under Section 2(B)

See Examination Guide Section IV (A)

1.  Great Seal of The United States - Refused

Seal of the US

2.  Seal of The President of The United States - Refused

Presidential seal

3.  The Official Seal of a Government Agency - Refused

Seal of Dept of Commerce

APPENDIX D

Designs That Are Not "Emblems Of National Authority" Are Not Barred By Section 2(B).

See Examination Guide Section IV (B)

1.  Designs That Identify Governmental Departments - No S ection 2(B) Refusal

Star in square Scales of justice and stars

2.  Monuments, Statues, Buildings - No Section 2(B) Refusal

Statue of liberty Eiffel tower US capitol building

3.  Objects Used By The Government - No Section 2(B) Refusal

Post Office Mail Box Space shuttle

4.  Words or Initials that Identify People or Departments in The Government - No Section 2(B) Refusal

U.S. PARK RANGER,

US DEPARTMENT OF TRANSPORTATION,

DOD - DEPARTMENT OF DEFENSE

APPENDIX E

Deletion of 2(B) Matter - See Examination Guide Section V

1.  The Flag Design May Be Deleted If It Is A Separable Element.

American flag in oval Italian flag and cup

Doctor and American flag

2.  The Flag May Not Be Deleted If It Is Integrated Into the Overall Design

American flag and hat American and British flags

APPENDIX F

Useful Websites for Viewing National and State Flags, Government Insignia and Coats Of Arms

A.  Flags of foreign nations

http://www.crwflags.com/fotw/flags/

http://en.wikipedia.org/wiki/Gallery_of_sovereign_state_flags

http://www.wave.net/upg/immigration/flags.html

B.  United States, state and territory flags

http://www.law.ou.edu/hist/flags/

http://www.50states.com/flag/

C.  Insignia

Great Seal of the United States http://www.greatseal.com /

Seal of the President of the United States http://www.whitehouse.gov/history/eeobtour/images/seal-presidential-color.html

Seals of Government departments - see specific agency website

D.  Coat of Arms - Gallery of coats of arms

http://en.wikipedia.org/wiki/Coat_of_arms

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