How can I overcome a Section 2(b) refusal of my trademark application?

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Written by Tomas Orsula

Senior Trademark Attorney

If you are facing a Section 2(b) refusal based on the use of a flag, coat of arms, or other insignia in your trademark, it is possible to overcome it. Your options include amending your mark and removing the element, if possible, or challenging the examiner's decision on one of these grounds:

  • That the flag design is used to form a letter, number, or design.
  • That the flag is substantially obscured by words or designs.
  • That the design is not in a shape normally seen in flags.
  • That the flag design appears in a color different from that normally used in the national flag.
  • That a significant feature of the flag is missing or changed.

The chances of overcoming this type of office action depend on your mark and the presence of the flag within it. It's advisable to consult with a trademark attorney who can help you choose the best course of action to save your trademark.

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