Flags in U.S. Trademarks

Contrary to popular belief, not just any mark can be registered as a trademark.  All elements of a mark must be carefully evaluated to determine whether the overall mark is capable of registered trademark protection in the USA.

For example, a mark will 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 will 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.

Generally, a mark will be refused 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.

The good news is that 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.

These are important nuances to keep in mind when designing your trademark as it is better to get it right from the start then have to rebrand at a later date.