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On Flag Day, What Flag Can You Protect?

Posted in First Amendment, USPTO

Today is Flag Day, which commemorates the adoption of the Stars and Stripes as our national flag 240 years ago.  Although maybe more obscure than Fourth of July or Memorial Day since it is not a federal holiday, this has always been one of my favorite American holidays.  There’s just something nostalgic, reverent, and almost pure about a street lined with even small American flags, which is how my neighborhood acknowledges the day.  For me, the flag is symbolic of freedom, of our nation’s values, of our veterans, and of hope for America’s future.

Although the flag itself was adopted over a decade before the Bill of Rights, the protection of free speech allows for irreverent use of the flag by burning it or otherwise desecrating it as a form of expressive speech.  While state and federal authorities have attempted to criminalize flag burning through several statutes, SCOTUS repeatedly struck down in the late 1980s and early 1990s such statutes as an unconstitutional impringement on free speech rights.

However, one of the only remaining codified restrictions on one’s ability to use the flag is the right to register it as a  trademark.  Section 2(b) of the Lanham Act prohibits registration of a mark that “consists of or comprises 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.”  This restriction, as you may find through the examples below, seems to be inconsistently applied.  You will see registered marks that incorporate the Stars and Stripes, but other marks that were refused registration.

Compare these marks of recently filed applications.  Which do you think were abandoned after being refused registration under 2(b)?  Which do you think are allowed or registered?  (Answers below).

(A) and (B) were both filed in class 25 on apparel goods.  (C) was filed for pet cremation urns.  (D) was filed by the Shooting Star Flag Company and (E) was filed by the Everytown for Gun Safety Action Fund.  (F) and (G) were obviously filed related to the marijuana industry.

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We are expecting a decision from SCOTUS any day now regarding its review of the Federal Circuit’s holding in THE SLANTS case that Section 2(a) of the Lanham Act is unconstitutional on free speech grounds.  It will be interesting to see whether SCOTUS discusses Section 2(a) relative to Section 2(b) at all in the context of whether the USPTO’s prior practices have amounted to unconstitutional content-based restrictions of speech.

(Answers:  B, C, E, F and G are allowed or registered marks.  Only A and D received 2(b) refusals.  Did you get them all right?)