In re City of Houston and In re The Government of the District of Columbia

Docket Nos. 2012-1356 and 2012-1418

October 1, 2013

Brief summary: Municipalities cannot register official seals due to prohibition in Section 2(b) of the Lanham Act.

Summary: The City of Houston appealed TTAB determination that it was not entitled to register its city seal as a trademark in connection with municipal and city services such as tourism, business, and public utility services. The “District” similarly sought to register its official seal to cover items such as shirts, pens, cups and hats but the examiner and the Board rejected their registration. The proposed registrations were rejected because Section 2(b) of the Lanham Act prevents the registration of a proposed trademark 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 Board finding that the prohibition applied to the municipalities per se as well as other parties. The Federal Circuit combined the appeals because the same issue was being considered in each case. The Board decisions were affirmed because, for instance, “nothing in [the] plain language…suggests a government entity…should be exempted from the reach of the prohibition” (“the drafters…knew how to express exceptions to a sections prohibitions”), “Houston could pass an ordinance prohbiting” the use of its seal on products and, because the “statutory prohibition of § 2(b) is quite plain on its face”, the legislative history need not be considered. The District also argued that the Board’s interpretation violates U.S. obligations under the Paris Convention “by construing a domestic law to violate the law of nations” (citing Murray v. Schooner Charming Betsy (US, 1804)). The FC panel disagreed because, for instance, the District is a municipality and “not a ‘country of the Union” (e.g., members of the Paris Convention). Accordingly, the Board decisions were affirmed.

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