There are Limits to Flag Designs in Registered Trademarks

By Michael G. Monyok

Patriotism is a fierce and special feeling, especially when the weather turns warm, barbeques break out, and Americans celebrate holidays like the Fourth of July garbed in the red, white and blue of our flag. Businesses, too, proudly display the stars and stripes in their logos and marketing materials, but there are limits to trademark protection when incorporating that symbol.

In its chapter on trademarks, the U.S. Code of Federal Regulations is clear that any trademark which “consists of or compromises 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” shall be refused registration.

The first part of the statue is relatively straightforward: any trademark displaying a nation, state or city’s flag or coat of arms cannot be registered. But, regarding the last part, what exactly is considered a “simulation?” That can mean different things to different people. Fortunately, the U.S. Patent and Trademark Office (USPTO) has an in-depth description, clarifying the differences between trademarks consisting of a simulation and those that simply use stylized versions of flags and can be registered.

USPTO says a simulation is “something that gives the appearance or effect or has the characteristics of an original item.” For instance, if the entirety of a flag is clearly displayed, it is refused. Examples provided by the USPTO include waving flags only barely obscured by text, black-and-white images that nevertheless include the unmistakable shape and design of the flags, or text that emphasizes a banner’s design is meant to be a national or state flag.

Stylized flag designs that can be registered as trademarks include those that form another shape (e.g. the elements of the flag within the outline of U.S. geographical borders), use significantly different colors (red, white and green stipes) or change a significant feature (stars that make a different shape).

The implications for business owners who cannot register their flag-bearing logos as trademarks mean other entities of competitors, whether knowingly or not, may use similar emblems, especially since the American flag is among the most popular symbols in the nation. While registered trademarks have the most protection, unregistered trademarks have limited rights derived from common law, and state statutes may offer more protection. Conversely, an unregistered trademark using elements of a flag may resemble a currently registered one, potentially leaving a business open to a lawsuit.

For more on trademark and intellectual property matters, reach out to Michael Monyok at [email protected]. Also, learn about the recent Supreme Court ruling on the “most significant” unresolved legal issue in trademark licensing here.

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