Proposed legislation would allow governments to trademark flags in the United States

A trademark is something used to brand products to tell consumers who produced a product. Traditionally a trademark is thought of as a simple symbol word or phrase, however anything that signals to consumers the identity of a product manufacturer can be eligible for trademark protection. In the United States the first person to use a trademark to brand goods is considered the senior user, subsequent users of the trademark are considered junior users. A senior user of a trademark has priority over the junior user in a dispute over ownership of the trademark. A trademark can be registered with the United States Patent and Trademark to strength their claim to the trademark, however registration is not necessary to begin using a trademark to brand goods, and a senior user of a trademark is still has priority over a junior users that registers a trademark.

One of the main functions of trademark law is to prevent consumer confusion. If a competitor uses a trademark to brand goods in a way that leads consumers to confusion the trademark owner’s products with the competitor’s products, that can be considered trademark infringement. A trademark owner can file a lawsuit to stop trademark infringement with an injunction and to get monetary damages for trademark infringement which has occurred.

United States trademark law has a broad definition for what can be granted trademark protection. However there are certain things which are explicitly excluded from trademark status. 15 U.S.C. §1052 states that no trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it (b) 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 means that the flags of nations cannot be claimed as a trademark by anyone.

The Trademark Manual of Examining Procedure goes into more detail on the subject in § 1204. Registration on either the Principal Register or the Supplemental Register of trademarks that consist of or comprise the flag, coat of arms, or other insignia of the United States, of any state or municipality of the United States, or of any foreign nation is barred. Registration of all such official insignia is barred regardless of the identity of the applicant, that is, the statutory prohibition allows no exception even when the applicant is a government entity seeking to register its own flag, coat of arms, or other insignia. In re City of Houston, 731 F.3d 1326, 108 USPQ2d 1226 (Fed. Cir. 2013).

Some people might believe that this absolute bar to the registration of government flags is a good idea. A flag is the property of the people that follow it. To allow a flag to be trademarked would create a complicated balancing act between the business using the flag to sell products and the rights of people who want to display their patriotism. Further to give a government the ability to license or tax people to use a flag seems to contradict the purpose a flag is intended to serve.

However the inability to control the use of a flag on products means that anybody can sell a t-shirt or coffee mug with a flag on it. Consumers buy the product because they like what the flag stands for, some people would argue the government that owns the flag should get some benefit from those sales and control who produces products bearing the flag.

The Fair Licensing Access for Governments (FLAG) Act of 2019, S. 963, was introduced by Sen. Tillis and U.S. Sen. Amy Klobuchar (D-MN) on April 1 2019. This act would amend United States trademark law to allow countries, states and local governments to register their flags as trademarks. The proposed act is light on details regarding how the United States Patent and Trademark Office would determine the rightful owner of a flag and how governments would fairly license the use of a trademarked flag. Hopefully those details will be fleshed out before the FLAG Act becomes law.

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