What is a trademark?
Trademark, or trade mark, is defined as a sign capable of distinguishing the goods or services of one company from the goods or services of other companies (World Intellectual Property Office). In practical terms, trademarks are closely connected to branding as it is often the visual element alongside the name of a brand that represents the trademark distinguishing the company’s product and service offerings from those of competitors.
Three most commonly used types of a trademark are:
Name (textual element)
Logo (graphical element)
Combined (text + logo)
Trademark legislation regarding usage of country flags
Although it is possible to include images in a trademark application, business owners should be extra cautious when these images represent flags or state emblems. The US and EU legislation prohibits the registration and use of trademarks that include official signs.
According to the U.S. Code of Federal Regulations, any trademark which “consists of or compromises 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” shall be refused registration.”
In a similar manner, the guidelines for examination of European Union trademarks put forward by the European Union Intellectual Property Office (EUIPO), in accordance to Article 6 ter (1)(a) preclude the registration and use of trademarks which are identical to State emblems or “which are to a certain extent similar to them”, so that the right of the State to control the use of the symbols of its sovereignty is not adversely affected, and so that the relevant public is not misled about the origin of the goods and services.
Below are some of the trademarks explicitly including country flag and coat of arms that were refused by the EUIPO:
As shown in these examples, the size of the protected emblem as contained in the EUTM is irrelevant, as long as it is legible and perceivable.
Although it is not possible to incorporate an image of a flag in its trademark, there is nothing preventing companies from using flag elements. Stylized flag designs that can be registered as trademarks include those that form another shape, use significantly different colours, or change a significant feature. For example, it is possible to use the colours blue-white-red, but they must not evoke the French flag. The following trademarks could therefore be registered:
Distinctiveness - the #1 trademark registrability criterion
For a trademark to be eligible for registration, it has to meet certain criteria, one of them being distinctiveness. As the purpose of a trademark is to signal a recognizable source of goods or services to the customer, only a distinctive-enough trademark can achieve this purpose without consumer confusion. In general, when choosing a name for your company, you should try to avoid words that are too generic, descriptive, or confusingly similar to existing trademarks.
It's therefore strongly recommended to get a legal opinion about the overall eligibility of your trademark before attempting to register it. In Trama, we offer a free lawyer's check with a 24-hour response guarantee that evaluates the distinctiveness of your trademark and other criteria necessary for a successful registration.
