My trademark application was dismissed due to the inclusion of a flag. What should I do?

Photo of Jan Buza

Written by Jan Buza

Co-founder of Trama

If the USPTO refused the registration of your trademark based on Section 2(b) of the Lanham Act, meaning due to the mark consisting of or comprising a flag, coat of arms, or other insignia, you should first carefully review the specific reasons provided by the examining attorney. It's important to understand that not all usage of flags is prohibited, and whether your mark crosses a line might be open for argument.

The examiner shouldn't refuse your application if:

  • The flag design is used to form a letter, number, or design.
  • The flag is substantially obscured by words or designs.
  • The design is not in a shape normally seen in flags.
  • The flag design appears in a color different from that normally used in the national flag.
  • A significant feature is missing or changed.

If you feel one of these conditions applies to your mark, you can use it to build a legal argument challenging the examiner's ruling. Alternatively, you can amend the mark to fit one of them or leave out the flag element altogether, if possible.

Remember that each case is unique, and the success of your response will depend on the specific circumstances of your trademark application. Consulting with a trademark attorney is therefore strongly recommended. An attorney can assess the strength of your case and help you craft a persuasive response.

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