Refusal on Basis of Flag, Coat of Arms, or Other Insignia of United States, State or Municipality, or Foreign Nation

15 U.S.C. §1052

(Extract)

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.

Section 2(b) of the Trademark Act,

15 U.S.C.

§1052(b)

,  bars the registration on either the Principal Register

or the Supplemental Register of marks that consist of or comprise (whether consisting

solely of, or having incorporated in them) the flag, coat of arms, or other insignia of

the United States, of any state or municipality of the United States, or of any foreign

nation.

See

Ceccato v. Manifattura Lane Gaetano Marzotto & Figli, S.p.A

., 32

USPQ2d 1192, 1196 (TTAB 1994) (noting that "it would appear that the reference to

‘municipality’ in the Statute is to a municipality in the United States, and that

prohibition of registration with respect to foreign coats of arms, etc., is to those of

the countries themselves, rather than to those of the states or municipalities of the

foreign countries"). Moreover, registration of all such official insignia is barred

regardless of the identity of the applicant, that is, the statutory prohibition allows

no exception even when the applicant is a government entity seeking to register its own

flag, coat of arms, or other insignia.

See

In re City of Hous.

, 731 F.3d 1326, 1331, 108 USPQ2d 1226, 1229 (Fed.

Cir. 2013);

In re Cnty. of Orange

, 2022 USPQ2d 733, at *18-25 (TTAB

2022),

appeal docketed

, No. 23-1004 (Fed. Cir. Oct. 4, 2022).

Section 2(b) also bars the registration of marks that

consist of or comprise any simulation of such symbols. "Simulation" refers to "something

that gives the appearance or effect or has the characteristics of an original item."

In re Ala. Tourism Dep’t

, 2020 USPQ2d 10485, at *2 (TTAB 2020)

(quoting

In re Fam

SPQ2d 733, at *18-25 (TTAB

2022),

appeal docketed

, No. 23-1004 (Fed. Cir. Oct. 4, 2022).

Section 2(b) also bars the registration of marks that

consist of or comprise any simulation of such symbols. "Simulation" refers to "something

that gives the appearance or effect or has the characteristics of an original item."

In re Ala. Tourism Dep’t

, 2020 USPQ2d 10485, at *2 (TTAB 2020)

(quoting

In re Fam. Emergency Room LLC

, 121 USPQ2d 1886, 1887 (TTAB

2017));

In re Advance Indus. Sec., Inc.

, 194 USPQ 344, 346 (TTAB

1977). Whether a mark comprises a simulation must be determined from a visual comparison

of the proposed mark vis-à-vis replicas of the flag, coat of arms, or other insignia in

question.

In re Ala. Tourism Dep’t

, 2020 USPQ2d 10485, at *2 (quoting

In re Fam. Emergency Room LLC

, 121 USPQ2d at 1887);

In re Waltham Watch

Co.

, 179 USPQ 59, 60

(TTAB 1973). The focus is on the general recollection of the flag or insignia by

purchasers, "without a careful analysis and side-by-side comparison."

In re

Ala. Tourism Dep’t

, 2020 USPQ2d 10485, at *2 (quoting

In re Fam.

Emergency Room LLC

, 121 USPQ2d at 1888);

In re Advance Indus.

Sec.,

194 USPQ at 346.

The incorporation in a mark of individual or distorted

features that are merely suggestive of flags, coats of arms, or other insignia does not

bar registration under §2(b).

See Knorr-Nahrmittel A.G. v. Havland

Int’l, Inc.

, 206 USPQ 827, 833

(TTAB 1980) (holding flag designs incorporated in the proposed mark NOR-KING and

design not recognizable as the flags of Denmark, Norway, and Sweden, the Board finding

that "[a]ll that the record reflects is that the mark contains a representation of

certain flags, but not the flag or flags of any particular nation");

In re

Advance Indus

r-Nahrmittel A.G. v. Havland

Int’l, Inc.

, 206 USPQ 827, 833

(TTAB 1980) (holding flag designs incorporated in the proposed mark NOR-KING and

design not recognizable as the flags of Denmark, Norway, and Sweden, the Board finding

that "[a]ll that the record reflects is that the mark contains a representation of

certain flags, but not the flag or flags of any particular nation");

In re

Advance Indus. Sec.,

194 USPQ at 346 (finding proposed mark comprising a

gold and brown triangular shield design with the words "ADVANCE SECURITY" predominately

displayed in the upper central portion of the mark "creates an overall commercial

impression distinctly different from the Coat of Arms");

In re Waltham Watch

Co.

, 179 USPQ at 60 (finding mark comprising wording with the design of a

globe and flags not to be a simulation of the flags of Switzerland and Great Britain,

stating that "although the flags depicted in applicant’s mark incorporate common

elements of flag designs such as horizontal or vertical lines, crosses or stars, they

are readily distinguishable from any of the flags of the nations alluded to by the

examiner."). Thus, marks with elements of flags in a stylized or incomplete form are

generally not refused under §2(b).

In re Ala. Tourism Dep’t

, 2020

USPQ2d 10485, at *2 (quoting

In re Fam. Emergency Room LLC

, 121

USPQ2d at 1888);

In re Advance Indus. Sec.

, 194 USPQ at 346.

Section 2(b) differs from the provision of §2(a) regarding

national symbols (

see

TMEP §1203.03(a)(iii)

) in that §2(b) requires no additional

element, such as a false suggestion of a connection, to preclude registration.