Honoring Memorial Day: Respecting Symbols Without Commercialization

Giselle Ayala Mateus, Esq.

As Memorial Day approaches, we prepare to honor and remember the brave souls who made the ultimate sacrifice in service to their country. It’s a time for reflection, gratitude, and commemoration. Yet, amidst the solemnity of this day, there’s a delicate balance to maintain between honoring the significance of Memorial Day and avoiding its commercialization. With gratitude, first of all, we discuss in this post what is important to consider when it comes to trademark protection. Specifically, whether you can move forward with the trademark registration of flags and official symbols.

Honoring Memorial Day

While many businesses may want to show their patriotism during this time, it’s important to understand the boundaries when it comes to branding. The American flag and other official symbols are not just icons; they represent something much larger than any one person or entity. They embody our nation’s values, history, and the very freedoms that those we honor on Memorial Day fought to protect.

Why You Can't Make Official Symbols Your Brand

The United States has specific laws that govern the use of national symbols, including the flag, the Great Seal, and other government insignia. These laws are designed to prevent the misuse of these symbols and ensure they are treated with the respect they deserve. For instance, according to the United States Code, Title 4, Chapter 1, the flag should never be used for advertising purposes in any manner whatsoever. It cannot be embroidered, printed, or otherwise impressed on articles such as cushions, handkerchiefs, napkins, boxes, or anything intended to be discarded after temporary use. Moreover, no part of the flag should ever be used as a costume or athletic uniform.

This means that while you can certainly decorate your business with flags and use them in a respectful manner to commemorate Memorial Day, you cannot trademark these symbols or claim them as part of your brand identity. Doing so would not only be illegal but also disrespectful to the very ideals these symbols stand for.

Explaining the rules on prohibited trademarks

According to the Trademark Manual of Examining Procedure and Section 2(b) of the Trademark Act, it is absolutely prohibited the trademark registration on either the Principal Register or the Supplemental Register of marks that consist of or comprise (whether consisting solely of, or having incorporated in them) the flag, coat of arms, or other insignia of the United States, of any state or municipality of the United States, or of any foreign nation. This rule is so strict that it also covers the simulation of this official symbols. 

What about suggestive marks?

As you provably know, if you have been up to date with the G.A.M. Law Office blog, suggestive trademarks are some of the stronger marks in the market. Suggestive marks create an illusion of something an idea or concept. For that reason, even in the work of official symbols suggestive trademarks  may be protected. The Trademark Manual of Examining Procedure states that, “The incorporation in a mark of individual or distorted features that are merely suggestive of flags, coats of arms, or other insignia does not bar registration under Section (2(b)”. This means, that if you want to honor the United States and exercise your creativity you could create a brand that in some way resemble the symbols that represent this country. 

As you provably know, if you have been up to date with the G.A.M. Law Office blog, suggestive trademarks are some of the stronger marks in the market. Suggestive marks create an illusion of something an idea or concept. For that reason, even in the work of official symbols suggestive trademarks  may be protected. The Trademark Manual of Examining Procedure states that, “The incorporation in a mark of individual or distorted features that are merely suggestive of flags, coats of arms, or other insignia does not bar registration under Section 2(b)”. This means, that if you want to honor the United States and exercise your creativity you could create a brand that in some way resemble the symbols that represent this country. 

Stylized Designs and Brand Protection

Stylized marks including parts of flags and official symbols may be protected. Let’s see why. Trademarks are symbols used to identify and distinguish goods and services in the market. Trademark law aims to protect creativity by allowing entrepreneurs to protect the creative symbols they have adopted to complete in the market, so that their good-will, marketing efforts and competitive advantages are not misappropriated by others. That’s why, under Section 2(b) of the Trademark Act, just having parts of flags, like stars and stripes (U.S. flag) or a maple leaf (Canadian flag), doesn’t always mean it will be turned down.

Examples of Protectable Trademarks

How Businesses Can Honor Memorial Day Appropriately

As you can see, there are many option when it comes to branding and honoring the United Stated. Furthermore, if Memorial Day has a special significance to you, there other option to honor this holiday. Businesses can still honor Memorial Day and express their patriotism without infringing on the rules. Here are some appropriate ways to do so:

  • Host a Moment of Silence: Invite customers and employees to join in a moment of silence at a specific time on Memorial Day to remember those who have fallen.
  • Educate Your Audience: Share stories and facts about Memorial Day through your social media channels and website to raise awareness about the holiday’s significance.
  • Support Veterans’ Causes: Partner with or donate to organizations that support veterans and their families. This shows a commitment to the spirit of Memorial Day beyond a single day of the year.
  • Offer Special Discounts: Provide special offers or discounts to veterans and active-duty military personnel as a gesture of thanks for their service.

In Conclusion...

Remember, Memorial Day is about honoring and remembering those who have sacrificed for our nation. As a business, showing respect and gratitude in a tasteful and lawful manner not only aligns with the spirit of the holiday but also reflects well on your brand’s values and integrity. Let’s use this day to come together as a community, pay tribute to our heroes, and uphold the principles they fought to defend.

Trademarks are symbols used to identify and distinguish products and services in the market. Trademark law aims to protect creativity by allowing entrepreneurs to protect the creative symbols they have adopted to complete in the market, so that their good-will, marketing efforts and competitive advantages are not misappropriated by others. For that reason, under Section 2(b) of the Trademark Act, The mere presence of some significant elements of flags, such as stars and stripes (U.S. flag) or a maple leaf (Canadian flag), does not necessarily warrant a refusal. 

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