In a recent precedential decision, the TTAB refused registration of two trademark applications by the County of Orange holding that the marks constituted insignia even though they were not official seals.
In 2017, the County of Orange, a political subdivision in the state of California, applied for trademark registration of a circular and badge design shown below.
Source: Op. at p. 2 Source: Op. at p. 3
Both marks were ultimately refused registration by their respective trademark examiners under Section 2(b) of the Trademark Act, which prohibits registration on either the Principle or Supplemental Register of a mark that “[c]onsists of or comprises 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.” The rationale for this is that government insignia should not be registered as symbols of origin for commercial goods and services and should be kept solely to signify the government.
The County of Orange appealed both decisions and argued that neither design is the County’s offical seal and, therefore, are not insignia and that the County of Orange is not a municipality.
In determining whether the circular design constituted insignia, the TTAB focused on the County of Orange’s use of the mark online, on official documents, and on government buildings. The TTAB found that the County of Orange used the circular design on its official website, on the Board of Supervisor’s webpage, on the Clerk-Recorder’s webpage, signage for County of Orange government offices, including the courthouse and the sheriff’s office, on the wall of the meeting room for the Board of Supervisors, and on the Orange County General Plan, which is a map illustrating land-use regulations. The TTAB found that this prominent and repeated display of the circular design to denote traditional government records, functions, and facilities would reasonably lead members of the public to perceive the mark as an insignia of the County of Orange. The TTAB held that it was irrelevant that the circular design was not an official seal approved by the Board of Supervisors.
To determine whether the County of Orange qualified as a municipality, the TTAB looked to Black’s Law Dictionary, which defines “municipality” as “[a] city, town, or other local political entity with the powers of self-government.” The TTAB noted that the California Constitution on its face provides counties with some powers of self-government. For example, a county is authorized to make and enforce local ordinances that do not conflict with general laws and has the power to sue and be sued. The TTAB found that the County of Orange’s own website also described the functions of the Board of Supervisors as that of “oversee[ing] the management of the County government and its many special districts” as well as “adopt[ing] ordinances, resolutions and minute orders within the limits prescribed by State law.” This oversight presumes that the County of Orange has at least some minimal power of self-government, and can, therefore, be considered a municipality, according to the TTAB.
The TTAB ultimately held that since the circular design constituted insignia and the County of Orange is a municipality, the circular design was unregistrable.
With regard to the badge mark, the TTAB noted that Section 2(b) of the Trademark Act precludes registration of a mark that “[c]onsists of or comprises … insignia of [any] municipality …” (emphasis added). Relying on prior case law, the TTAB held that “consists of or comprises” means “includes.” In analyzing the badge mark, the TTAB held that it is clear that the badge includes the entirety of the circular design and, therefore, includes insignia of a municipality and was unregistrable.