Flags and U.S. Trademarks

Although you may be using a certain logo as your mark in the course of U.S. trade, federal registration is not automatically guaranteed.

Your mark must be scrutinized and evaluated to ensure that it meets all requirements for U.S. registration.

If your mark contains the flag of a country, you may not be entitled to registration.  If your design includes a true representation of the flag of the United States, any state, municipality, or foreign nation, or is a simulation thereof, registration will be refused under §2(b) of the Trademarks Act. 

Your mark will be refused if design would be perceived by the public as a flag, regardless of whether other matter appears with or on the flag.

The following factors will be considered:

(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).

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, if you amend a "red, white, and blue" American flag to a black-and-white American flag, your mark will still be refused. 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.

The good news is if you’ve been creative in desigining your logo and your mark contains elements of flags in a stylized or incomplete form, you may be entitled to registration.

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 your flag design fits one of the following scenarios, your mark should not be refused: (1) The flag design is used to form a letter, number, or design; (2) The flag is substantially obscured by words or designs; (3) The design is not in a shape normally seen in flags; (4) The flag design appears in a color different from that normally used in the national flag; or (5) A significant feature is missing or changed.

If you have any questions about your logo which incorporates a flag, please contact us at Trademarkroom.