Precedential No. 19: TTAB Affirms Section 2(b) Refusals Of Orange County "Unofficial" Insignia

Published date09 August 2022
Subject MatterIntellectual Property, Trademark
Law FirmWolf, Greenfield & Sacks, P.C.
AuthorMr John L. Welch

Every five years or so, like clockwork, the Board decides a Section 2(b) case. This time it affirmed refusals to register the two proposed marks depicted below, for various governmental services (e.g., maintaining parks and libraries), on the ground that they constitute insignia of a governmental entity, i.e., a "municipality." The Board rejected the argument that Orange County is not a municipality, and also rejected the argument that because Orange County already has an "official" seal, these design cannot be insignia of the county. County of Orange, Serial Nos. 87419378 and 87639750 (August 4, 2022) [precedential] (Opinion by Judge Martha B. Allard).

Section 2(b) is a complete bar to registration of a mark that "[c]onsist of or comprises the flag or coat of arms or other insignia of . . . any State or municipality ...." It is based on the idea that "official government insignia . . . should not be registered as symbols of origin for commercial goods and services." 3 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION ' 19:78 (5th ed. 2022).

Insignia? The Board first focused on the "Circular Mark" on the left IT observed that the term "insignia" has multiple meanings, including "a distinguishing mark or sign" and "an emblem." The Circular Mark has not gone through the two-step process set out in the California Government Code to make it an "official seal" of Orange County. In fact, Orange County has an "official" seal, shown immediately below. The Board pointed out, however, that formal adoption as an "official" seal is not a requirement of Section 2(b)

Evidence submitted by Examining Attorney Christina Calloway showed that the Circular Mark is displayed prominently on the county's website, which provides links to various services offered by the county, such as business licenses and payment of property tax bills. It is also displayed on the website for the Clerk-Recorder's office, which manages many official government documents such as marriage licenses and death certificates. The Mark appears prominently on signage for county offices, in cluding the county courthouse, appears on the wall of the meeting room of the County Board...

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