Registration of matter that may falsely suggest a connection with a U.S. government agency or instrumentality is prohibited under Trademark Act §2(a). See TMEP §1203.03(b)(i) (setting out the four-element test). Some names, acronyms, titles, terms, and symbols of U.S. government agencies or instrumentalities are also protected by separate statute. See TMEP §1205.01 for information about statutorily protected matter and Appendix C for a nonexhaustive list of U.S. statutes protecting designations of certain government agencies and instrumentalities. Many of these statutes allow third parties to use the protected matter when authorized by an agency official. This authorization to use, by itself, should not be construed to extend to authorization to register marks that include matter the applicant does not own. See generally TMEP §1201 regarding the ownership requirement. Where it appears from the record that the applicant is not the agency or instrumentality referenced in the mark, but the record suggests an affiliation between the applicant and the referenced agency, the examining attorney must require the applicant to establish its authorization to register the mark by requesting information pursuant to 37 C.F.R. §2.61(b). See TMEP §1201.06(c).

Registration must be refused if the nature of the mark and the nature of the goods or services is such that a U.S. government agency or instrumentality would be presumed to be the source or sponsorship of the applicant’s goods or services, or connected to or otherwise affiliated with applicant’s organization for a collective membership mark. In re Leathernecks Motorcycle Club Int’l, Inc., Ser. No. 90498154, 2024 TTAB LEXIS 208, at *24-27 (2024); In re Peter S. Herrick, P.A., 91 USPQ2d 1505, 1507-08 (TTAB 2009) (finding "U.S. CUSTOMS SERVICE" a close approximation of the former name of the government agency, U.S. Customs Service, which is now known as the U.S. Customs and Border Protection but which is still referred to as the U.S. Customs Service by the public and the agency itself, that the seal design in the proposed mark is nearly identical to the seal used by the former U.S. Customs Service, the only meaning the "U.S. Customs Service" has is to identify the government agency, and a connection between applicant’s attorney services and the activities performed by the U.S. Customs and Border Protection would be presumed); In re Nat'l Intel. Acad., 190 USPQ 570, 572 (TTAB 1976) (holding NATIONAL INTELLIGENCE ACADEMY, for educational and instructional services in intelligence gathering for law enforcement officers, falsely suggests a connection with the U.S. government since intelligence gathering is a known function of a number of government agencies and "[a] normal outgrowth and development of such activities would be the training of officers in intelligence gathering"); In re Teasdale Packing Co., 137 USPQ 482 (TTAB 1963) (holding U.S. AQUA and design falsely suggests a connection with the U.S. government on the ground that purchasers of applicant’s canned drinking water would be misled into assuming approval or sponsorship by the U.S. government in view of the nature of the mark, including a red, white, and blue shield design; the nature of the goods; the Board noting a program for stocking emergency supplies of water in fallout shelters; and the setting of standards for drinking water by U.S. government agencies).

The record must include evidence showing that the designation in the mark references the agency or instrumentality and that the goods or services are such that a connection with that agency or instrumentality would be presumed, particularly when it is not readily apparent that the wording or acronym in the mark refers to the agency or instrumentality. See In re Leathernecks Motorcycle Club Int’l, Inc., 2024 TTAB LEXIS 208, at *24-27 (holding LEATHERNECKS for indicating membership in a motorcycle club to falsely suggest a connection with the U.S. Marine Corps based on dictionary and website evidence indicating the term is a nickname adopted by the USMC and recognized as such, including the name of the Marine Corps Association monthly magazine, Leatherneck, given that the "term originated from the wide and stiff leather neck-piece that was part of the Marine Corps uniform from 1798 until 1872" that kept the Marine’s head erect and protected the neck and jugular vein from cutlass slashes); In re U.S. Bicentennial Soc’y, 197 USPQ 905, 906-07 (TTAB 1978) (holding U.S. BICENTENNIAL SOCIETY, for ceremonial swords, to falsely suggest a connection with the American Revolution Bicentennial Commission and the U.S. government, based on applicant’s claims in the specimen of record and the fact that "swords have historically been presented by grateful sovereigns and governments to persons who have been honored by such gifts and that ceremonial swords are on display in the museum at Mt. Vernon"). But see In re Mohawk Air Servs. Inc., 196 USPQ 851, 855 (TTAB 1977) (holding MOHAWK 298, for airplanes, to not falsely suggest a connection with the U.S. Army and the Army’s use of the term "Mohawk" to identify one of its airplanes, since there was no evidence of record that the Army continuously used the term since 1958, that the public was aware of such use, or that the public would associate "Mohawk" named airplanes with the U.S. Army).

Furthermore, the question of the registrability of a mark under §2(a) may be determined by "the nature of the goods or services in connection with which the mark is used and the impact of such use on the purchasers of goods or services of this type." NASA v. Record Chem. Co., 185 USPQ 563, 568 (TTAB 1975) . Thus, the identified goods or services must be scrutinized in the context of the current marketplace to determine whether they are of the type to be offered by U.S. government agencies and instrumentalities. For instance, if the evidence supports a finding that it is commonplace for government agencies to sell or license the sale of consumer merchandise featuring agency names or acronyms, such as clothing, toys, key chains, and calendars, a false connection with a government agency would be presumed if that agency name or acronym is used in connection with those goods and, therefore, the mark should be refused registration under §2(a).

The §2(a) false suggestion of a connection refusal and the procedures stated above also apply to marks containing names of, and acronyms and terms for, U.S. government programs (e.g., Medicare or FAFSA), military projects (e.g., BigDog), and quasi-government organizations (e.g., Smithsonian Institution). The examining attorney may also require the applicant to provide additional information about the mark and/or the goods or services, under 37 C.F.R. §2.61(b).

Disclaiming the name of, or acronym for, the U.S. government agency or instrumentality to which the mark refers generally will not overcome the §2(a) refusal. See TMEP §1213.03(a) regarding unregistrable components of marks. If the test for false suggestion of a connection under §2(a) is not met, the examining attorney must still determine whether the applicant is authorized to register the designation in the mark. If, based on the record, the applicant lacks authorization from the government agency or instrumentality to register the mark, the examining attorney must refuse under §1 and §45. See TMEP §1201.06(c).