Thursday, March 16, 2017

Precedential No. 3 = TTAB Test: Does this Mark Include a Simulation of the Swiss Flag?

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).

Read comments and post your comment here.

TTABlog comment: Is this a WYHA? Why is the opinion precedential?

Text Copyright John L. Welch 2017.

5 Comments:

At 9:00 AM, Blogger David Oppenhuizen said...

I think the Board got the Section 2(b) rejection right. But considering the color scheme and the medical context of the mark, my personal feeling is that the commercial impression is more akin to the Red Cross than the Swiss flag. Either way, it gets the same result.

 
At 11:52 AM, Anonymous Anonymous said...

What if they had done a black and white app and not claimed color?

 
At 12:20 PM, Anonymous Anonymous said...

I disagree. It is not a precise duplication of the Swiss flag. Instead, it's something that looks like a Swiss flag presented in a specific context, namely, medical/emergency room services.

I, and I think the average consumer, would perceive that immediately and (certainly for me) exclusively a reference to the use of crosses in medical/therapeutic contexts.

I'm very familiar w/ the Swiss flag, and it wouldn't occur to me to think of this mark has having a simulation of the Swiss flag.

 
At 1:04 PM, Anonymous Anonymous said...

But see the result in the WORLD LITERACY DAY logo appeal. Multiple small versions of flags used as torsos of people not barred. http://thettablog.blogspot.com/2014/09/ttab-reverses-section-2b-refusal-of.html

 
At 8:23 AM, Anonymous Anne Gilson LaLonde said...

This mark is an interesting candidate for whether non-registrable marks are still protectable under common law or Section 43(a).

Some argue that courts can never protect marks that can't be registered, including scandalous terms (for now), disparaging terms (for now), and government insignia (the Renna case). But can you imagine a court refusing to enforce this one against a confusingly similar junior mark? On what basis could it do that? There isn't the moral high ground of the scandalous/disparaging issue, just a mark that happens not to be registrable but may function perfectly well as a mark.

 

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