Family Emergency Room LLC

Trademark Trial and Appeal Board

Mar 14, 2017

No. 86709923 (T.T.A.B. Mar. 14, 2017)

THIS OPINION IS A
PRECEDENT OF THE
TTAB

Mailed: March 14, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
________

In re Family Emergency Room LLC
________

Serial No. 86709923
_______

Joshua G. Jones of Reed and Scardino
for Family Emergency Room LLC.

Heather D. Thompson, Trademark Examining Attorney, Law Office 109,
Michael Kazazian, Managing Attorney.
_______

Before Quinn, Wellington, and Coggins,
Administrative Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:
Family Emergency Room LLC (“Applicant”) filed an application to register on the
Principal Register the mark shown below

(CEDAR PARK FAMILY EMERGENCY ROOM disclaimed) for “hospitals” in
International Class 44.1

1 Application Serial No. 86709923, filed July 30, 2015 under Section 1(b) of the Trademark
Act, 15 U.S.C. § 1051(b), based on an allegation of a bona fide intention to use the mark in
Application Serial No. 86709923

2

The Trademark Examining Attorney refused registration under Section 2(b) of
the Trademark Act, 15 U.S.C. § 1052(b), on the ground that the proposed mark
includes a simulation of the flag of Switzerland.
When the refusal was made final, Applicant appealed and requested
reconsideration. The request for reconsideration was denied, proceedings in the
appeal were resumed, and Applicant and the Examining Attorney filed briefs.
Section 2(b) provides 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 comprises2 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.

Applicant argues that its proposed mark contains “a rhombus or diamond shape
with a series of lines in front of the rhombus,” and that the mark “while certainly
borrowing elements of the Swiss national flag, does not run afoul of Section 2(b).” 7
TTABVUE 3. Applicant relies upon two non-precedential Board decisions, and two
abandoned applications in support of its position that the mark is registrable.

commerce. The application includes the following statements: “The mark consists of a white
cross on a red field, red diagonal lines on the left edge of the field, the words ‘Cedar Park’
over the words ‘family emergency room’ wherein the letters ‘ER’ in ‘emergency’ are larger and
in bold font. The colors white, red and gray are claimed as a feature of the mark.”
2 As the Federal Circuit explained when construing the identical “consists of or comprises”
language in Section 2(a), “the word ‘comprises,’ at the time of the statute’s enactment in 1905,
meant ‘includes.’” In re Fox, 702 F.3d 633, 105 USPQ2d 1247, 1250 (Fed. Cir. 2012), citing
Webster’s Academic Dictionary 121 (Springfield, Mass., G. & C. Merriam Co. 1895). Section
2(b) thus prohibits registration of a mark that includes a flag of a foreign nation or any
simulation thereof.
Application Serial No. 86709923

3

The Examining Attorney maintains that the mark includes a design of a white
cross on a red ground, and that this is the flag or a simulation of the flag of the Swiss
Confederation, that is, Switzerland. Contrary to Applicant’s contention that this
portion of the mark is a rhombus design, the Examining Attorney states that “the
tilted angle of the applicant’s figure gives the appearance of a flag on display [that]
serves to emphasize the resemblance to the Swiss flag.” 9 TTABVUE 5. The
Examining Attorney also distinguishes the present case from the two non-
precedential Board decisions, and two third-party applications (now abandoned), all
relied upon by Applicant in connection with its argument that the Office has approved
similar marks in the past. In support of the refusal, the Examining Attorney
introduced a representation of the Swiss flag.
Registration must be refused under Section 2(b), in pertinent part, if the proposed
mark includes a true representation of the flag of a foreign nation, or is a simulation
thereof.3 The word “simulation” in the statute “is used … in its usual and generally
understood meaning, namely to refer to something that gives the appearance or effect
or has the characteristics of an original item.” In re Advance Indus. Sec., Inc., 194
USPQ 344, 346 (TTAB 1977). See In re Waltham Watch Co., 179 USPQ 59, 60 (TTAB

3 In the view of Professor McCarthy: “Section 2(b)’s absolute bar is apparently founded upon
the thinking that these kinds of governmental insignia, such as a national flag or seal, should
not be registered as symbols of origin for commercial goods and services. That is, these kinds
of governmental insignia ought to be kept solely to signify the government and not be sullied
or debased by use as symbols of business and trade.” 3 J. Thomas McCarthy, McCarthy on
Trademarks and Unfair Competition, § 19:79 (4th ed. Dec. 2016). In this connection,
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).
Application Serial No. 86709923

4

1973). Whether particular matter is a simulation of a flag is determined by a visual
comparison of the matter and the actual flag. Id.
Under standard examination procedure, a refusal is issued if the design would be
perceived by the public as a flag, regardless of whether other matter appears with or
on the flag. Trademark Manual of Examining Procedure (TMEP) § 1204.01(a) (Jan.
2017). Thus, the relevant question is whether consumers will perceive matter in the
mark as a flag. TMEP §1205.01(d)(ii). Marks containing elements of flags in a stylized
or incomplete form are not refused under Section 2(b). See In re Waltham Watch Co.,
179 USPQ at 60; TMEP § 1204.01(b). The focus of the analysis is on the relevant
purchasers’ general recollection of the flag, “without a careful analysis and side-by-
side comparison.” In re Advance Indus. Sec., Inc., 194 USPQ at 346. In this case, the
relevant consumer is the recipient of hospital services, which is, of course, the general
public.
The TMEP provides applicants and examining attorneys with a reference work
on the practices and procedures relative to prosecution of applications to register
marks in the USPTO. TMEP § 1205.01(d) is devoted entirely to marks containing the
Swiss Confederation flag or coat of arms. The present application involves a flag
design, so we focus our attention on the Swiss flag design (as opposed to the Swiss
coat of arms). As indicated in TMEP § 1205.01(d): “[T]he Swiss flag consists of a white
equilateral cross displayed upright on a red square.” Examining attorneys have been
appropriately instructed to consider the following factors when determining whether
matter in a mark will be perceived as the Swiss flag:
Application Serial No. 86709923

5

• the colors, if any, that appear in the matter;
• the stylization of the matter and its relationship to other elements in the mark;
• the presence of any words or other designs on the drawing that might create
or reinforce the impression that the matter is the Swiss flag; and

• the presentation and use of the mark on the specimen of record, if one is
provided.

TMEP § 1205.01(d)(ii). The determination of whether a refusal under Section 2(b)
must issue should be based on how the mark is displayed in the drawing, described
in the application, or used in the specimen of record. Id. Examining attorneys must
refuse registration under Section 2(b) if the mark contains an element composed of
an upright equilateral cross on a square or a rectangle (or simulation thereof) that is
not significantly stylized, altered, or merged with other elements in the mark, and,
in relevant part, the drawing shows the cross in white and the square or rectangle in
red. TMEP § 1205.01(d)(ii)(A). On the other hand, even if the mark contains an
upright equilateral cross on a square or a rectangle (or simulation thereof), a Section
2(b) refusal should not be issued if, in relevant part, the flag shown in the mark is
sufficiently altered, stylized, or merged with other elements in the mark, so as to
create a distinct commercial impression. TMEP §§ 1204.01(b); 1205.01(d)(ii)(C). The
above standards, as set forth in the TMEP, are appropriate under the statute.
The flag of Switzerland is shown below (www.cia.gov; August 21, 2015 Office
Action, p. 2):

Application Serial No. 86709923

6

The design in the proposed mark, which the Examining Attorney views as a
simulation of the Swiss flag, is shown below:

In the required description of the mark (see Trademark Rules 2.37 and 2.52(b)(5)),
Applicant describes this portion of its proposed mark as “a white cross on a red field,
[with] red diagonal lines on the left edge of the field.” In the required color description
of the mark (see Trademark Rule 2.52(b)(1)), Applicant states, inter alia, that the
colors white and red are claimed as a feature of the mark.
When the design in the proposed mark, featuring a white cross on a red ground,
is compared to the red and white Swiss flag, we find that they are highly similar, and
that the addition of the lines at the left of the design, and the very slight tilt of the
design, are insignificant in altering the commercial impression of the design.
Although the red field technically is not a square (but, rather, as Applicant states, a
Application Serial No. 86709923

7

rhombus4), it would likely be perceived as a square viewed from a slight angle. Given
the close approximation of the Swiss flag in Applicant’s design, it is not unreasonable
to assume that many consumers might not even notice the slight tilt and lack of right
angles of the red ground. Similarly, the addition of the stylized wording CEDAR
PARK FAMILY EMERGENCY ROOM to the right of the white cross and red ground
design does not change the perception of that design from a simulation of the Swiss
flag. Simply put, the design shown in the proposed mark is not sufficiently altered,
stylized, or merged with the other elements in the mark, so as to create a distinct
commercial impression, other than as a simulation of the Swiss flag. The average
member of the general public seeing the proposed mark would associate the design
feature with the flag of Switzerland. Accordingly, the matter sought to be registered,
when considered in its entirety, is prohibited under Section 2(b) because the proposed
mark includes a design consisting of or comprising a simulation of the flag of
Switzerland.
The two third-party applications (shown below), now abandoned, relied upon by
Applicant are entirely unpersuasive.5

4 A rhombus with right angles is a square. (www.merriam-webster.com). The Board may take
judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food
Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983),
including online dictionaries that exist in printed format or have regular fixed editions. In re
Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). See In re Thomas White Int'l Ltd., 106
USPQ2d 1158, 1160 n.1 (TTAB 2013).
5 Application Serial Nos. 85250677 and 78916348, respectively. Even if these applications
had not been abandoned, for the reasons expressed below, we would reach the same result in
this appeal.
Application Serial No. 86709923

8

First, such applications are evidence only of the fact that they were filed; they have
no other probative value. In re Pedersen, 109 USPQ2d 1185, 1196 n.45 (TTAB 2013),
citing In re Juleigh Jeans Sportswear, Inc., 24 USPQ2d 1694 (TTAB 1992). Second,
these two examples appear in TMEP § 1205.01(d)(v), with analysis that clearly
distinguishes each of the proposed marks from the one sought to be registered in the
present application. As indicated in the TMEP, a Section 2(b) refusal is not
appropriate in the first mark because the relevant matter does not appear in the
shape of the Swiss flag, which is not the situation with the present applied-for mark.
With respect to the second mark, although the mark contains an upright equilateral
cross in white on a red background, this matter is integrated into a stylized silhouette
of a house and, accordingly, the mark creates a commercial impression of something
entirely different from the Swiss flag. This second situation is very different from the
design in the present mark.
Application Serial No. 86709923

9

We have considered Applicant’s remaining arguments, including its arguments
based on two unpublished Board decisions,6 and do not find them persuasive.
Decision: The refusal to register is affirmed.

6 Application Serial Nos. 77046679 (dated November 14, 2008) and 85641327 (dated
September 30, 2014).