Section 2(b) of the Lanham Act, in pertinent part, prohibits registration of a mark that “[c]onsists of or comprises the flag … of any foreign nation, or any simulation thereof.” The word “comprises” means “includes.” Applicant sought to register the mark shown below for “hospitals,” but it was refused registration under Section 2(b). Does the mark include a simulation of the Swiss flag [shown next below]? You be the judge. In re Family Emergency Room LLC, Serial No. 86709923 (March 15, 2017) [precedential].

Applicant described the relevant portion of its mark as “a white cross on a red field, [with] diagonal lines on the left edge of the field.” It claimed read and white as a feature of the mark. It conceded that the mark “borrow[s] elements of the Swiss national flag.”

The Board found applicant’s design to be “highly similar” to the Swiss flag. The addition of lines at the left of the design and the very slight tilt of the design are “insignificant in altering the commercial impression of the design.”

Simply put, the 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 Swiss flag. The average member of the general public seeing the proposed mark would associate the design feature with the flag of Switzerland.

Therefore, registration of applicant’s mark is prohibited by Section 2(b).

 

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