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 a refusal under §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

§§1202

,

1301.02(a)

), or for likelihood of confusion,

15 U.S.C. §1052(d)

,  may also apply

to these marks.