Trademark Act Section 2(b) bars 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 of the United States ….” 15 U.S.C. § 1052(b).

This section imposes an absolute bar against registration of a mark that consists of or contains a flag, coat of arms or other insignia, and reflects the sentiment that such symbols are indicia of government authority that ought to be reserved for signifying the government. In re City of Houston, 731 F.3d 1326, 108 USPQ2d 1226 (Fed. Cir. 2013).

The County of Orange

The County of Orange was denied registration of a circular design mark (“Circular Mark”) for a wide range of services including country government services. In re County of Orange, 2022 USPQ2d 733 (TTAB Aug. 4, 2022).

The Circular Seal includes three oranges in the foreground. The “official” seal of the County of Orange (adopted over a century ago) generally consists of a single orange having a stem with three leaves.

The “official” seal of Applicant as compared to the proposed Circular Mark is shown below:

Although the Circular Mark has not undergone the formal process to become an “official” seal for the county, it is displayed widely by the County of Orange including on its website, on various county documents, and on signage for County of Orange government offices.

[T]he prominent and repeated display of the proposed Circular Mark to denote traditional government records, functions, and facilities would reasonably lead members of the general public to perceive the proposed mark as an “insignia” of Applicant within the meaning of Section 2(b) of the Trademark Act.

The TTAB noted that Section 2(b) does not distinguish between “official” and “unofficial” insignia. Thus, “formal adoption is not required for insignia to fall under the prohibition of Section 2(b) based on a literal reading of the Act.”

[T]he Circular Mark is widely used to denote traditional government records, functions, and facilities, and would be perceived as insignia as it denotes government authority. In re U.S. Dept. of the Interior, 142 USPQ 506, 507 (TTAB 1964).

The County argued this “would effectively dictate the official seal of the County of Orange,” to which the TTAB noted, “Our decision as to whether the proposed Circular Mark constitutes an “insignia” under the Trademark Act has no effect on any actions by the Board of Supervisors in its decision to adopt (or not) an official seal.”

The TTAB, however, noted that a more whimsical mark for services that are not the type of services “uniquely and exclusively provided by a government” (such as hiking tours and zoos which are at least sometimes provided by private companies) would not run afoul of Section 2(b).

The TTAB also found that the county government was a “municipality” under the Trademark Act.

Comment

The circular result appears to be that, for a government body or agency widely using a serious-looking logo in connection with traditional government services, rather than serve as a distinguishing mark for purposes of creating trademark rights, it would instead become an insignia or emblem of governmental authority.