The complexity of flags in logos

It sometimes happens that companies incorporate flags in their logo. It often seems like a good idea to use a flag in your logo to show affiliation with a particular country, think of Ferrari who integrated the Italian flag in its logo. However, it results in trademark law obstacles to the registration and use of your trademark...

Prohibition of State emblems

What many companies do not know is that the The Paris Convention for the Protection of Industrial Property strictly prohibits the use and registration of coats of arms, flags and other State emblems of states and international organisations as trademarks unless you have obtained approval from the state or international organisation in question. This restriction does not only apply to the use of these official symbols but also to any "heraldic imitation" thereof. The ground for refusal is an absolute ground for refusal, which means that the official trademark office will automatically refuse your trademark application if you violate the prohibition.

Protection and registration of symbols

Flags automatically enjoy protection. For other types of symbols it is required that they are first registered in a publicly accessible database. Before incorporating an official symbol (other than flags) in your logo, it is therefore advisable to check whether the symbol in question has been included in the database. If not, you can use and register the symbol. When a symbol is protected, the scope of protection for flags, coats of arms and State emblems is absolute, meaning your trademark application will be refused. Think of Napapijri whose registration looks completely different from the usual logo. If they did not make the changes before the registration, the logo would not have been registered.

For symbols of international organisations on the other hand, there will only be a refusal if the relevant public actually finds a link between your brand and the organisation. In other words, for symbols of international organisations, a risk of association (though not necessarily a risk of confusion) is required.

Avoid heraldic imitations

If we focus on flags, it is clear that the use of real official flags (which are always rectangular and in a 3:2 format) is strictly forbidden. But when do we exactly speak of a "heraldic imitation" of an official flag? It is also possible to make modifications, for example, you can use a stylised version, think of the Napapijri logo.

We speak of a heraldic imitation when the heraldic essence of the flag is incorporated in your logo. Elements that purely refer to a flag will not be enough in this situation. The key question is whether the public sees it as an imitation of the protected flag or emblem, regardless of differences in heraldic details. In principle, the size of the flag in your logo does not matter. For flags with distinctive elements (other than the colours, so e.g. the cross in the Swiss flag), the use of those distinctive elements makes it more likely that it is a heraldic imitation. Furthermore, word elements in the logo referring to the country may also increase the likelihood of heraldic imitation.

Policy facilitation

For example, the European trademark office refused to register River Woods' old logo containing the Canadian maple leaf in the past. The Benelux Trademark Office recently indicated that they have eased somewhat their practice in recent years. That’s why applications for the figurative marks 'Lasagne disc', 'Race across Belgium' and 'Hollandia Dakkapellen' were accepted. The Benelux Trademark Office considers that there is no heraldic imitation in these logos after all, as there is enough distinction from the real flags.

Before including official symbols in your logo, it is highly recommended to seek the advice of a trademark expert. Feel free to contact us for more information.