AVIS DE DROIT PROTECTION DES SIGNES NATIONAUX

ETATS-UNIS
On a narrower note, federal law also prohibits the use of the flag within the District of
Columbia for commercial purposes, such as advertising or as a feature of a commercial
product. 340 Although the improper use of the national flag outside the District of Columbia
has not been made a federal offense, should Congress wish to assume such control, it has the
power under the Constitution to do so. 341 The vast majority of states have enacted such
statutes 342 .
The determination of whether a proposed mark consists of or comprises a flag, coat of arms or
other insignia must be made "without a careful analysis and side-by-side comparison." The
public should be considered to retain only a general or overall, rather than specific,
recollection of the various elements or characteristics of design marks. 343
"Simulation," as contemplated by §2(b), refers to "something that gives the appearance or
effect or has the characteristics of an original item." 344 Whether a mark comprises a
simulation must be determined from a visual comparison of the mark vis-à-vis replicas of the
flag, coat of arms or other insignia in question. 345 The incorporation in a mark of individual or
distorted features that are merely suggestive of flags, coats of arms or other insignia does not,
however, bar registration under §2(b). 346
The Trademark Act distinguishes between flags, coats of arms and insignias, on the one
hand, and other national symbols, on the other. As noted in Liberty Mutual Insurance Co.,
185 F. Supp. at 908, 127 USPQ at 323:
340
4 U.S.C. § 3 available at: http://www.ushistory.org/betsy/flagetiq.html#5 .
341
34 Op.Atty.Gen. 483 (1925).
342
See §2c “droit regional” infra.
343
In re Advance Industrial Security, Inc., 194 USPQ 344, 346 (TTAB 1977) (ADVANCE SECURITY
and design consisting of an eagle on a triangular shield, in gold and brown, for detective and
investigative services and providing security systems and services, found registrable, the Board
stating, "When the mark of the applicant and the Coat of Arms or Great Seal of the United States are
compared in their entireties, it is adjudged that applicant's mark does not consist of or comprise the
Coat of Arms of the United States or any simulation thereof ....").
344
In re Waltham Watch Co., 179 USPQ 59, 60 (TTAB 1973) (mark consisting of wording and the
design of a globe and six flags for watches found registrable, the Board stating, "[A]lthough the flags
depicted in applicant's mark incorporate common elements of flag designs such as horizontal or
vertical lines, crosses or stars, they are readily distinguishable from any of the flags of the nations
alluded to by the examiner. In fact, applicant's mark would be regarded as nothing more than a
conglomeration of nondescript flags utilized to symbolize the significance of the globe design and the
slogan 'TIMING THE WORLD' appearing thereon.")
345
Id.
346
See Knorr-Nahrmittel A.G. v. Havland International, Inc., 206 USPQ 827, 833 (TTAB 1980) (While
applicant originally may have intended to include the flags of the Scandinavian countries in the mark,
NOR-KING and design, "[a]ll that the record reflects is that the mark contains a representation of
certain flags, but not the flag or flags of any particular nation." Opposer's cause of action under §2(b)
found to be without merit; opposition sustained on other grounds); In re National Van Lines, Inc., 123
USPQ 510 (TTAB 1959) (mark comprising words and the design of a shield with vertical stripes held
registrable, the Board finding the design to be readily distinguishable from the shield of the Great
Seal of the United States and, therefore, not a simulation of the seal or any portion thereof); In re
American Box Board Co., 123 USPQ 508 (TTAB 1959) (design mark comprising an eagle and shield
held registrable, the Board finding that it did not involve a simulation of the Great Seal of the United
States because the eagle and shield of applicant's mark differed substantially from those on the seal in
both appearance and manner of display).
208