Can a municipality register a trademark comprised of its own flag, coat of arms or other insignia?

Section 2(b) of the Trademark Act, 15 U.S.C. § 1052(b), prohibits registration on either the Principal or Supplemental Register 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.”

This is an absolute bar to registration, the bar represents a more general determination that [government] insignia are not appropriate subjects of trademark law at all, they should not be symbols of origin of commercial goods and services, they “ought to be kept solely to signify the government”.

The Trademark Manual of Examining Procedure indicates that “insignia” “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.” Other governmental emblems are not subject to the Section 2(b) prohibition.

For example, departmental logos (such as the National Park Service arrowhead design) have long been held to be registrable. In that regard, locally, The City of Coral Gables owns trademarks for “CORAL GABLES THE CITY BEAUTIFUL” and “THE CITY BEAUTIFUL”, Miami-Dade County owns registrations for “VIZCAYA”, “MIAMI-DADE COUNTY FAIR & EXPOSITION” and many more.

As to Flags and Simulations of Flags.” 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.” The Trademark Manual of Examining Procedure considers the following factors to determine whether consumers will perceive matter in a trademark to be 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).

Furthermore, formal adoption is not required for insignia or flag to fall under the prohibition of Section 2(b). Also, the existence of prior trademark registrations for those flags or insignias does not bind or prevent the Trademark Office for subsequently denying a trademark application.

I’d like to help by advising you on how to avoid situations like this one, how to better use, register, monitor your trademarks, and subsequently enforce those rights.