Part B: Absolute grounds for refusal

6.25

Section 2 of the Schedule A1 of the RDA sets out the grounds under which designs containing the flags of Paris Convention countries will be refused:-

6.26

An objection under Section 2, Schedule A1 will be taken wherever a design consists of, or contains, an unmodified representation of the national flag of a Paris Convention country. Such flags are afforded automatic protection without any requirement of notification to the World Intellectual Property Organisation (‘WIPO’), and without any need for them to be listed in WIPO’s Article 6ter database. A list of those countries which are signatories to the Paris Convention, and the Article 6ter database are available.

6.27

Sections 2.2 and 2.3 of Schedule A1 address the protected status given to those armorial bearings, other state emblems, official signs, and hallmarks which have been notified to WIPO and which are included in the Article 6ter database of protected armorial bearings, flags and other State emblems. Unlike national flags, it should be noted that armorial bearings, other State emblems and ‘other’ flags (that is those which are not national flags) will only be open to objection in instances where they have been previously notified to WIPO.

6.28

Section 2.4 of Schedule A1 addresses imitations of flags, emblems, signs and hallmarks, and confirms that where the imitation so closely resembles the original protected emblem, an objection must be raised. The following are contrasting examples of designs which would be considered both acceptable and unacceptable under this provision. The first example is a reproduction of the Flag of the United States of America – a design which is clearly objectionable under Section 2(1). In contrast, the second example borrows elements and has an overall configuration which might bring the US flag to mind, but is not intended to be a replica or imitation. As a result, it would be deemed acceptable under Sections 2(1) and 2(4):

6.29

The same logic applies to the following two examples. The first example contains a reproduction of the ‘Maple Leaf’ emblem as found in the Canadian flag, and may therefore attract an objection. In contrast, the second example is also a maple leaf, but is presented in more naturalistic style, and is clearly not intended to be an imitation of the Canadian national emblem.

6.30

Authentic representations of protected national emblems will face objection regardless of the presence of additional elements. In the following examples, which relate to two different reproductions of the Irish Shamrock (an emblem which is protected under Article 6ter), the public is unlikely to perceive any difference between the two versions shown. In the first example, the design consists solely of a shamrock, and so will attract an objection on account of that particular emblem’s protection granted under 6ter. In the second example, one is likely to perceive both the phrase ‘My Lucky Star’ and the shamrock device, with the word element doing little to lessen the impact or presence of the figurative shamrock element. As a result, an objection is as valid against the composite design as it is against the design consisting solely of a protected emblem. Both of the following examples would therefore attract an objection under Section 2, Schedule A1 RDA:

6.31

In all of the above scenarios, the objections taken may be overcome by obtaining consent from the relevant authorities (that is the national Governments responsible for protecting each emblem under Article 6ter).