1204.01 Flags and Simulations of Flags
1204.01(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, regardless of whether other matter appears with or on the flag. In re Family Emergency Room LLC, 121 USPQ2d 1886, 1887-88 (TTAB 2017). 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; and (4) use of the mark on the specimen(s). Cf. id. at 1888 (discussing the factors to consider in determining whether matter in a mark will be perceived as the Swiss flag).
Generally, a refusal should be made where a black-and-white drawing contains unmistakable features of the flag, contains features of the flag along with indicia of a nation, or is shown on the specimen in 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 §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.
Examples of Situations Where Registration Should Be Refused. The following are examples of situations where registration should be refused, because all significant features of the flag are present or a simulation of the flag is used with state or national indicia:
The wording "That’s Italian" emphasizes that the banner design is a simulation of a flag.
This design is refused because the word SWISS emphasizes that the design is intended to be a simulation of the Swiss flag.
This black-and-white mark is refused because the word Texas emphasizes that the design is intended to be the state flag of Texas.
See TMEP §§1205.01(d)-1205.01(d)(iii) regarding procedures for marks containing the Swiss Confederation coat of arms or flag.
1204.01(b) Stylized Flag Designs are not Refused under §2(b)
Marks containing elements of flags in a stylized or incomplete form are not refused under §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.
If the flag design fits one of the following scenarios, the examining attorney should not refuse registration under §2(b):
- The flag design is used to form a letter, number, or design.
- The flag is substantially obscured by words or designs.
- The design is not in a shape normally seen in flags.
- The flag design appears in a color different from that normally used in the national flag.
- A significant feature is missing or changed.
Examples. The following are examples of stylized designs that are registrable under §2(b):
Flag Forms Another Design, Number, or Letter - No §2(b) Refusal
Flag Is Substantially Obscured By Other Matter - No §2(b) Refusal
Flag Design Is Not In the Normal Flag Shape - No §2(b) Refusal
Significant Feature of the Flag Is In a Different Color - No §2(b) Refusal
NOTE: Stripes in flag are red, white, and green.
Significant Feature Is Changed - No §2(b) Refusal
1204.01(c) Case Law Interpreting "Simulation of Flag"
The Trademark Trial and Appeal Board found that no simulation of a flag existed in the following cases: In re Am. Red Magen David for Israel, 222 USPQ 266, 267 (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."); In re Health Maint. Orgs., Inc., 188 USPQ 473 (TTAB 1975) (holding dark cross, with legs of equal length, having a caduceus symmetrically imposed thereon sufficiently distinctive from Greek red cross and flag of Swiss Confederation).
1204.01(d) Description of the Mark
The description of the mark should make it clear that the design is a stylized version of the national flag, if accurate. For example, a statement 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.
1204.01(e) Flags Not Presently Used as National Flags
Flags of former countries, states, or municipalities are not refused under §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 §2(b). For example, the original flag of the United States representing the 13 colonies should be refused.