1204 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. 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. 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.
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 Ala. Tourism Dep’t, 2020 USPQ2d 10485, at *2 (TTAB 2020) (quoting In re Fam. 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)." In re Ala. Tourism Dep’t, 2020 USPQ2d 10485, at *2 (quoting TMEP §1204.01(a)) (affirming the standards set forth in this section).
Generally, an examining attorney should issue a refusal if 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)-(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.
In re Ala. Tourism Dep’t, 2020 USPQ2d 10485, at *2 (TTAB 2020) (quoting TMEP §1204.01(b)) (affirming the standards set forth in this section).
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 Finding No Simulation of a Flag
In certain cases, the Trademark Trial and Appeal Board found that the flag design was not a simulation of a particular national flag. 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.
1204.02 Government Insignia
1204.02(a) Designs that are Insignia Under §2(b) Must Be Refused
Flags and coats of arms are specific designs formally adopted to serve as emblems of governmental authority. 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.
The following are insignia of the United States for purposes of §2(b):
- Great Seal of the United States
- Presidential Seal
- Seals of Government Agencies
The Trademark Trial and Appeal Board has construed the statutory language as follows:
[T]he wording "or other insignia of the United States" must be restricted in its application to insignia of the same general class as "the flag or coats of arms" of the United States. Since both the flag and coat or [sic] arms are emblems of national authority it seems evident that other insignia of national authority such as the Great Seal of the United States, the Presidential Seal, and seals of government departments would be equally prohibited registration under Section 2(b). On the other hand, it appears equally evident that department insignia which are merely used to identify a service or facility of the Government are not insignia of national authority and that they therefore do not fall within the general prohibitions of this section of the Statute.
In re U.S. Dep't of the Interior, 142 USPQ 506, 507 (TTAB 1964) (finding logo comprising the words "NATIONAL PARK SERVICE" and "Department of the Interior," with depiction of trees, mountains, and a buffalo, surrounded by an arrowhead design, not to be an insignia of the United States). The Trademark Trial and Appeal Board reaffirmed this interpretation in In re Peter S. Herrick, P.A., 91 USPQ2d 1505 (TTAB 2009), by affirming the §2(b) refusal since applicant’s seal design was virtually identical to the seal used by the United States Department of the Treasury.
1204.02(b) Examples of Insignia That Should Be Refused Under §2(b)
Examples: The following are examples of insignia that should be refused under §2(b):
1204.02(c) Examples of Designs That Should Not Be Refused Under §2(b)
Designs that do not rise to the level of being emblems of national authority, or emblems of state or municipal authority, should not be refused. Exception: As a result of the enactment of Public Law 98 525 on October 19, 1984, the initials, seal, and emblem of the United States Marine Corps are "deemed to be insignia of the United States," under 10 U.S.C. §7881. The amendments adding this section do not affect rights that vested before October 19, 1984. Applications claiming use after October 19, 1984 must be refused.
The following are examples of designs that are not barred from registration under §2(b):
Designs That Identify Governmental Departments - No §2(b) Refusal
Monuments, Statues, Buildings - No §2(b) Refusal
Objects Used By The Government - No §2(b) Refusal
Words or Initials that Identify People or Departments in The Government - No §2(b) Refusal
- U.S. Park Ranger
- U.S. Department of Transportation
- DOD - Department of Defense
1204.02(d) Case Law Interpreting Insignia Under §2(b)
The following cases provide examples of matter that was held not to be government insignia under §2(b):
- (1) Department insignia that shows a service or facility of a federal department are not refused registration under §2(b). See In re United States Dep't of the Interior, 142 USPQ 506, 507 (TTAB 1964) (finding insignia of the National Park Service registrable).
- (2) Monuments, statues, or buildings associated with the United States such as the White House, Washington Monument, and Statue of Liberty, are not refused registration under §2(b). See Liberty Mut. Ins. Co. v. Liberty Ins. 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 are not refused registration under §2(b). See In re Brumberger Co., Inc., 200 USPQ 475 (TTAB 1978) (finding representation of the U.S. mailbox was not to be an insignia of the United States. However, the Board affirmed a refusal to register the mark under §2(a) because of a false connection with the United States Postal Service).
- (4) Initials or words that identify people or departments of a government agency. Letters that merely identify people and things associated with a particular agency or department of the United States government, instead of representing the authority of the government or the nation as a whole, are generally not considered to be "insignia of the United States" within the meaning of §2(b). See U.S. Navy v. United States Mfg. Co., 2 USPQ2d 1254 (TTAB 1987) (finding 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 §2(b) of the Lanham Act). Note: As a result of the enactment of Public Law 98 525 on October 19, 1984, the initials, seal, and emblem of the United States Marine Corps are "deemed to be insignia of the United States," under 10 U.S.C. §7881, pertaining to unauthorized use of Marine Corps insignia. However, "USMC" was not so protected when the applicant began using its stylized version of those letters as a mark. In view of the provision in Public Law 98-525 that the amendments adding Chapter 663 (10 U.S.C. §7881) shall not affect rights that vested before the date of its enactment, the majority of the Board found that enactment of the law did not adversely affect the mark’s registrability, stating that "opposer has not shown that applicant’s mark was an insignia of the United States prior to the law making it one, or that the law effectively bars registration to applicant." Id. at 1260.
1204.03 Other Refusals May be Appropriate
Marks that are not barred by §2(b) may be refused if prohibited by other sections of the Trademark Act. For example, a design may not be an insignia under §2(b) but may be refused under §2(a). See, e.g., In re Brumberger Co., Inc., 200 USPQ 475 (TTAB 1978) (finding representation of the U.S. mailbox was not an insignia under §2(b) but was properly refused under §2(a) because it falsely suggested a connection with the United States Postal Service). Likewise, §2(d) may be a bar to registering a stylized flag that is not prohibited under §2(b).
See also TMEP §1205.01 and TMEP Appendix C regarding subject matter that is protected by statute.
1204.04 Responding to §2(b) Refusal
1204.04(a) Absolute Bar to Registration
Because §2(b) provides an absolute bar to registration, a disclaimer of the prohibited flag or insignia or an amendment to seek registration under §2(f) or on the Supplemental Register will not overcome a 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.
1204.04(b) Deletion of §2(b) Matter
Section 1 Applications. The deletion of the unregistrable §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, e.g. , if 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.
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.
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 §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 §2(b) matter are not permitted because the Madrid Protocol does not permit the amendment of a mark in an international registration. TMEP §807.13(b).
1204.04(b)(i) Examples of Matter That May and May Not Be Deleted
The Flag Design May Be Deleted If It Is A Separable Element:
The Flag May Not Be Deleted If It Is Integrated Into the Overall Design:
1204.05 Resources
Internet Evidence:
Many useful websites present images of national and state flags, government insignia, and coats of arms:
Flags of Foreign Nations:
United States, State, and Territory Flags:
- https://en.wikipedia.org/wiki/Flags_of_the_U.S._states_and_territories
- https://statesymbolsusa.org/categories/state-flag
Insignia:
- Great Seal of the United States http://www.greatseal.com/
- Seal of the President of the United States https://en.wikipedia.org/wiki/Seal_of_the_President_of_the_United_States
- Seals of Government departments - see specific agency website
Coat of Arms:
Non Registration Data:
The "89" series code (i.e., serial numbers beginning with the digits "89") includes designations protected by federal statute or regulation, designations submitted to the USPTO from the IB pursuant to Article 6ter of the Paris Convention, and official insignia of federally and state-recognized Native American tribes. These submissions are sometimes referred to as "non-registrations." See TMEP §§1205.01─1205.03.