Trademark Registration: Flags, Coats of Arms, and other Insignia Not Eligible
The registration of a trademark for a flag, coat of arms or other “insignia” of the United States, any State or municipality, or of any foreign nation, is explicitly prohibited by Section 1052 of the Lanham Act (“the Trademark Act”).
This is one of a handful blanket prohibitions contained in the Lanham Act, and it is a relatively simple one to understand. The purpose of a trademark registration is to identify the unique source of a good or service sold in interstate commerce to the consuming public.
The “good” identified by a flag is the United States, a state, municipality, or foreign nation or state. It is not something that is therefore either unique or “for sale in interstate commerce.”
A national identity (or state or municipal, etc.) belongs to all members of that nation, state, or municipality. It cannot serve the purpose of a Federal trademark registration.
The statutory prohibition even extends to the governmental body in question itself. The fact that, say, the United States government itself may be the one filing an application for a trademark registration incorporating a U.S. flag makes no difference.
Trademark Registration: “Simulations” of Flags, Coats of Arms, and Other Insignia Also Prohibited
Not only are the flags and insignia prohibited, “simulations” of these things will also be refused by the US Patent and Trademark Office (USPTO) with which applications are trademark registration are filed.
What is a “simulation” of a flag?
A “simulation” of a flag is any design that might be perceived as a flag by the public.
The USPTO will examine whether a design’s color, presentation, words or other designs on the mark, and the use of mark on the specimens provided by the applicant would tend to have this effect upon the public.
What this generally means is that an application will be refused if it contains a representation of a flag, features of a flag, or other unmistakable identifiers of a particular flag.
Black-and-white designs will of otherwise colorful flags will not avoid the prohibition, but the simple use of a standard geometrical shapes (stars, stripes, etc.) will not fall into the prohibition.
Likewise, marks containing mere elements of flags that are in different colors than the flag in question, in different shapes, substantially obscured or altered by words or designs, or used to form a design or letter are not necessarily refused.
Trademark Registration: Other National Symbols
A “national symbol” is also not necessarily prohibited.
These symbols are those that possess special significance because, as defined in case-law, their “meaning, appearance, and/or sound … immediately suggests or refers to the country for which it stands.”
They are symbols that are not “on par” with a flag or coat of arms. Some examples are the bald eagle, the Statue of Liberty, and so forth.
The rule here is that such symbols may be utilized in a registrable mark so long as they do not falsely suggest a connection with the governmental entity in question.
Again, the point of a trademark registration is to uniquely identify the source of a good or product sold across state lines to consumers. Even without the governmental connection, any “false suggestion” or confusion as to source will always tank any trademark registration application.
Trademark Registration of Flags, Coats of Arms, and National Insignia: The Bottom Line
The bottom line is that with regard to trademark protection of your name or log, it doesn’t pay to go cheap after investing all of your resources and time into the development of the product itself.
Retain a trademark attorney such as Attorney John Hilla to assist you with your search and your application to ensure the best results.
Noble Path Trademark Law is a boutique US law practice located in Metro Detroit and assisting enterprises in every industry with trademark registration, trademark renewal, trademark monitoring, and Office Action refusal response matters.
We offer virtual consultations, premium customer service, and the expertise you need to maximize your odds of trademark registration success.
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