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

Senior Trademark Attorney

Options for overcoming a Section 2(b) refusal include arguing that the element in the mark does not simulate the flag or insignia identified by the examiner; for example, that a geometric pattern is not recognizable as a specific national flag. Alternatively, if the mark incorporates a flag as part of a larger design where the flag forms a letter or other distinctive element, that argument can be made.

If the flag or insignia cannot be argued away, removing or sufficiently modifying the element to eliminate the simulated flag from the mark is the practical resolution. This constitutes an amendment to the mark drawing, which is only permitted where the change does not materially alter the mark's distinctive character.

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