Trademarking, a National Symbol or Flag

A question was recently referred to the European Court of Justice raising whether a national symbol or flag, in this case being the Canadian Maple Leaf, could be trademarked as part and parcel of the goods that it was applied to, for example, clothing. This includes whether the symbol or flag forms only a part of the overall trademark.

The argument was that refusal to register the trademark containing the national symbol or flag should only be made if it would compromise the symbol or flag’s identity and sovereignty of the state in question, in this case being Canada.

However, emblems differ from trade marks in several ways, and this is established under the Paris Convention (Article 6ter): there is no limitation to specific goods or services; their duration is unlimited; there can be no deprivation of the right through non-usage; a likelihood of confusion does not have to be established; and a protected emblem will catch imitations as well as exact replicas.

The European Court of Justice thus rejected the argument and maintained that symbols of national identity and sovereignty of a state are not protectable.

The UK Intellectual Property Office has therefore also upheld this point and reclarified its position, indicating that the relevant test is ‘whether the average consumer considers that the symbol in the mark is a national emblem or imitation, from a heraldic point of view, of the protected sign’. As such, any mark which includes the protected national symbol even as a small part will be refused.

The above is also relevant to other protected emblems, for example, the Olympic rings.