Court Cites § 2(b) of Lanham Act in Cancelling Re/Max’s Mark, Tri-Colored Design Embodied Netherlands’ Flag

Author: Eleanor B. Atkins

Citing Section 2(b) of the Lanham Act, the U.S. District Court for the Eastern District of North Carolina recently cancelled one of real estate brokerage firm Re/Max’s trademarks, finding it to be nearly identical to the Netherlands’ flag. This seldom-cited section of the Lanham Act prevents federal registration 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 of any foreign nation or any simulation thereof.”

The suit began when Re/Max sued M.L. Jones & Associates d/b/a FavoriteAgent.com for trademark infringement. In response, FavoriteAgent.com filed multiple counterclaims, including cancellation of two of Re/Max’s marks for improper registration under Section 2(b). The two registrations are shown below:

’048 Registration Netherlands Flag
’854 Registration

The court rejected the defendant’s argument as to the ‘854 registration, finding it bore no resemblance to the Netherlands flag “other than its use of three horizontal bands.” The ‘048 registration, however, not only resembled the Netherlands flag, it included the flag in its entirety. Although Re/Max submitted survey evidence to try and establish that no consumer association existed between the ‘048 trademark and the Netherlands’ flag, the court found it irrelevant to the consideration of federal registration since Section 2(b) is “a clear statutory bar.”

 

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