Flags as Trademarks Is Rarely a Smooth Choice

For those of you reading this who are not from Maryland, our state has a unique flag and people are proud of the flag. Not unsurprisingly, quite a few businesses who are proud of their state, and not just Marylanders, want to incorporate their state flag or other flags into a visual trademark. I get quite a few calls asking to use and register different flags or flag elements in a trademark.

Trademark law specifically forbids the use of the United States flag, and the flag of any state, municipality, or locality, or the flags of foreign countries, as the basis of any trademark.

The primary concern for the U.S. Patent & Trademark Office is to avoid the likelihood of confusion in the minds of a consumer. If a trademark uses identifiable aspects of a flag, then a consumer might think that the government represented by that flag is the source of the goods or services or endorses the goods or services. Understandably, that false sense of source or endorsement can’t be permitted. 

But what about all those logos that have flags or elements of flags in them already? Well, there are two things. First, that logo may not be, and likely is not, registered as a trademark.

Second, while you can’t use the entire flag or a combination of the flag and other references to the country, state, or city symbolized by the flag, you can use or hint at the flag in the following ways:

  • The flag design is used to form a letter, number, or design.
  • The flag is substantially obscured by words or designs. The key here is “substantially.” The difficulty might be how much is substantial? I would be shooting for at least forty percent or more obscured.
  • The design is not in a shape normally seen in flags. A good example might be an image of the continental United States with an American Flag theme like this example:

  • The flag design appears in a color different from that normally used in the national flag. However, simply changing a current flag from color to black and white may not be enough if all of the other elements of a flag are present.
  • A significant feature of the flag is missing or changed. Also be mindful, that while some state flags have a crest or coat of arms present, simply removing that crest may not be enough.

If you make your logo with the above factors in mind, you may still successfully have your trademark registered. However, it is not guaranteed in any way. Remember, even if your logo doesn’t look like the flag that does not mean that some other creative person has not previously registered a similar logo. Always do a trademark clearance search first.

However, not all hope is lost. Just because the U.S. Patent & Trademark Office may not register the logo as a trademark, that does not mean you cannot use the logo in your business. The drawback is that a country, state, municipality, or the entity represented by the flag can request that you stop using the logo and they could even sue you in court. It is all a matter of risk and whether you are willing to take that risk.

Before deciding to include elements that look like a particular flag in your logo, be sure that you check with a trademark attorney to make sure what you’re doing is not going to cause a problem. Including a flag is a quick way to get your logo rejected as a trademark, and it is also a quick way to lose money. Not only would you lose your application fee to the U.S. Patent & Trademark Office, you may lose other money, such as the money spent on designers and printers.

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