What is Section 2(b) Refusal - Consisting of or comprising a flag?

Under Section 2(b) of the Trademark Act, the USPTO can refuse registration to any trademark which "consists of or compromises 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".

It's important to note that not every mark containing a flag is unregistrable. Stylisation and presence within the mark play a role in this ruling. The examiner shouldn't refuse registration if:

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

Therefore, the strategy to overcome a Section 2(b) refusal may include challenging the USPTO's decision on one of these grounds, amending the mark to fit with one of the points, or leaving the symbol out of the mark altogether, if possible.

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 your case with a trademark attorney who can help you choose the best course of action.