US: TTAB prohibits registration of mark with US flag design

Managing IP is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

US: TTAB prohibits registration of mark with US flag design

smoke flag of United States

In In re Alabama Tourism Department, the Trademark Trial and Appeal Board (TTAB) issued an uncommon refusal to register under Section 2(b) of the Lanham Act the mark shown below owned by the Alabama Tourism Department (ATD), on the ground that the mark includes a simulation of the United States flag. In doing so, the TTAB sent a reminder that the benefits of federal registration may not be available to marks incorporating flag designs.

us-image-summer20.jpg

A Section 2(b) analysis requires the TTAB to consider a number of factors. Section 2(b) of the Trademark Act prohibits registration of a mark that "[c]onsists 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." Refusal is appropriate if the design would be perceived by the public as a flag, regardless of whether other matter appears with or on the flag. On the other hand, the presence of some flag elements in a mark does not necessarily warrant refusal, and flags displayed in a stylised, incomplete or unique form may be eligible for registration.

Accordingly, to determine whether the ATD's mark could be registered, the TTAB examined whether: (i) the flag design would be perceived as a simulation of an actual US flag; (ii) the elements of the flag create a distinct commercial impression other than as the US flag; (iii) significant features of the US flag are missing or changed; (iv) the flag design is used to form a letter, number, or design; (v) the flag design is substantially obscured by words or designs; and (vi) the flag design is not in a shape normally seen in the US flag.

ATD, for its part, contended that the flag design in its mark was missing significant features of the US flag, formed another design, was substantially obscured by other designs in the mark and was not in a shape normally seen in the US flag, adding that the registration of other marks involving elements of the American flag justifies registration of its mark. However, the TTAB was not convinced.

After assessing and rejecting each of ATD's arguments, the TTAB affirmed the refusal to register, concluding that the flag "design shown in the proposed mark is not sufficiently altered, stylized, or merged with the other elements in the mark, so as to create a distinct commercial impression, other than as a simulation of the [US] flag," and noting that their decision was not inconsistent with the registration of the third-party marks cited by ATD.

Karen Artz Ash and Jerry Jakubovic

more from across site and SHARED ros bottom lb

More from across our site

Siegmund Gutman, who joined Mintz one year ago, explains the firm’s approach to life sciences litigation and what it means for hiring plans
The merger of two IP boutiques could prompt others to follow suit and challenge Australia’s externally funded firms
Law firm leaders say they are eager to make the most out of the market following a 'surprising' survey on in-house interest in IP monetisation
A defeat for AstraZeneca and Open Innovation Network's 20th anniversary were also among the top talking points this week
Nigel Stoate, head of Taylor Wessing's award-winning UK patents team, tells us about his team’s UPC successes and why collaboration is king
Camilla Balleny, who spent a decade at Carpmaels & Ransford, will become the firm’s first head of patent litigation, Managing IP can reveal
Leaders at the newly merged firm Jones Maxwell Smith & Davis reveal their plan to take on bigger firms while attracting more clients and talent
Charles Achkar, who will bring a team of two with him, said he was excited about joining ‘one of the few strong IP boutiques’
Andy Lee, head of IP at Brandsmiths and winner of the Soft IP Practitioner of the Year award, tells us why 2024 was a seminal year and why clients value brave advice
The deal to acquire MIP's parent company is expected to complete by the end of May 2025
Gift this article