Registering your business’ trade marks protects elements of your branding such as logos, images and fonts. International flags may appear in logos to denote your product’s or service’s origin and connection with a particular country. However, registered logos containing international flags may raise issues as you apply for registration. Often, trade marks that contain international flags will require extra steps for verification by the national intellectual property regulator, IP Australia. This article sets out how you can register and protect your trade marks containing international flags.

Why You Should Use Trade Marks

Trade marks are a vital tool for any business looking to protect their visual branding features. Overall, a trade mark grants you exclusive rights to use your business’ name or logo within your industry. The trade mark registration process ensures you have the right to take action to stop other businesses within your industry from using a similar trade mark.

Additionally, trade marks are essential badges of origins for a business’ goods and services. This provides the consumer with assurance as to the quality of the good or service. Therefore, businesses may choose to incorporate international flags into their brand identity to assure consumers that the good or service was created locally. Many popular and recognisable trade marks contain international flags, including:

  • Mediterranean Classics Campagna with the Italian flag;
  • London Bitter with the United Kingdom flag; and
  • Aussie Mates with the Australian flag.

General Rule

Generally, you will be unable to register a trade mark containing an international flag. Australia has agreed to an international treaty, known as the Paris Convention, where the Australian Government has promised to prohibit registering trade marks which contain international flags without the appropriate consent of the country of origin.

Therefore, you will typically be unsuccessful in registering trade marks for logos which include international flags.

Exceptions to the General Rule

However, you can register your trade mark so long as you have authorisation from the relevant country. You can seek the consent of the country whose flag you are hoping to apply to your branding by writing to their embassy and obtaining permission to register your trade mark. Otherwise, IP Australia will reject your trade mark because your logo may create the incorrect implication that your good or service has a connection with the country whose flag you are displaying on your logo.

Additionally, you should remember that your trade mark will only be rejected if it contains a clearly represented flag. This requires an obvious depiction of a flag as well as the corresponding colours of the country’s flag. As such, when a trade mark only represents or includes a few components of a flag, the trade mark may be registered. Overall, if your logo only partially includes a flag, or it sufficiently distorts the original, you may register your logo.

For example, IP Australia has illustrated how a United States flag may be accepted or rejected under this framework:

Acceptable representation—despite displaying a similar colour scheme to the United States’ flag, the logo has been distorted.

Unacceptable representation—two whole flags are clearly visible.

In assessing your trade mark, IP Australia will consider whether the representation of the flag in your logo is likely to mislead the public into thinking there exists a connection between you and that particular country.

Strategies for Registering Your Trade Mark

IP Australia will reject your attempt to register trade mark containing an international flag if you are not careful. Consequently, if you intend to register your trade mark, you have two options:

Obtaining Consent You cannot register a trade mark containing the whole of an international flag without permission. You can seek consent by writing a letter addressed to the relevant country’s embassy. Afterwards, you can supply your proof of permission to IP Australia during your registration process.
Using a Representation If you do not wish to use the whole of a flag, you should substantially distort the flag’s appearance. You should change the image of the flag enough so that the public cannot assume there is a connection between your business and that country.

 

By following either of these approaches, you will increase your chances of IP Australia registering your trademark. Once your logo has been registered, you may begin applying it to your products and marketing materials. You will also be entitled to take action against people who copy your registered business branding.

Key Takeaways

Registering your business’ trade marks is crucial for your brand protection strategy. However, if your business logo includes an international flag, registration may become a difficult process. Consequently, you will likely benefit from distorting the depiction or writing to the country’s embassy for permission.

If you need assistance in or would like to discuss registering trade marks which contain international flags, contact LegalVision’s trade mark lawyers on 1300 544 755 or fill out the form on this page.

Sophie Glover
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