Understanding USPTO Rules for Patriotic Trademarks
The trademark selection process is full of traps for the unwary. Suppose you want a patriotic logo that waves the Stars and Stripes. Reasonable enough. But don’t. One client came to us after the USPTO refused registration of a mark that included the Jamaican flag. Under trademark examination rules, any mark that contains a national flag or suggests a false connection with a government agency must be refused (TMEP §1204.01). The rule covers not only the U.S. flag but also the Great Seal, the Presidential Seal, and any federal, state, or municipal insignia.
However, “designs that do not rise to the level of being emblems of national authority” are allowed (TMEP §1204.02(c)). You can safely use images that identify governmental departments or national icons such as the Eiffel Tower.
These restrictions originate in the Lanham Act of 1946, 15 U.S.C. §§1052(a)–(b). Those provisions bar registration of marks that are “immoral, deceptive, or scandalous,” that “disparage or falsely suggest a connection with persons, institutions, beliefs, or national symbols,” or that “consist of or comprise 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.”
Their lineage goes back even further to Article 6ter of the 1925 Paris Convention, which prohibits use of state emblems or flags as trademarks. Article 6ter is binding on all 173 member nations, including the United States. The shared goal is to prevent public confusion and misuse of emblems with national or international significance. Section 1052(a) extends this protection beyond symbols to institutions, beliefs, and individuals.
Case Study: US SPACE FORCE Trademark Refusal
A recent case shows how these principles work in practice. In In re Thomas D. Foster, APC (No. 23-1527, May 7, 2025), the Federal Circuit affirmed the USPTO’s refusal to register US SPACE FORCE, finding it falsely suggested a connection with the U.S. government. The phrase, of course, refers to the military branch announced by President Trump on March 13, 2018, and formally established by Congress in December 2019. Three days after the announcement, Thomas D. Foster filed an application to register US SPACE FORCE for merchandise. Both the Examining Attorney and the Trademark Trial and Appeal Board denied it.
Foster argued that his filing preceded the official creation of the military branch and that the USPTO could only consider facts existing at the filing date. The court rejected that argument, holding that the relevant period for evaluating a false connection extends through examination and Board review, not just the filing date. Evidence up to the Board’s 2022 decision was properly considered.
To assess whether a mark falsely suggests a government connection, the Board applied its four-part test:
1. The mark must be the same as or a close approximation of a name or identity previously used by another.
2. The mark must be recognized as pointing uniquely and unmistakably to that entity.
3. The named entity must have no connection with the applicant’s activities.
4. The entity’s fame or reputation must be such that consumers would presume a connection.
The Federal Circuit found substantial evidence supporting each element. US SPACE FORCE was identical to the name of a well-known military branch and uniquely identified the U.S. government. Foster had no affiliation with the U.S. military or government. Given the public awareness of the new service, the likelihood of a presumed connection was unavoidable.
Entrepreneurs chasing quick profits by filing “patriotic” trademarks should take heed. The USPTO treats national symbols, agency names, and military insignia as off-limits, and courts have shown little patience for applicants who test those boundaries. A flag, seal, or slogan tied to the government may look like easy money, but it will almost certainly wave a red flag at the Trademark Office instead.
— Adam G. Garson, Esq.