Is it possible for the Maltese cross to be an EU trademark?

As it is well-known trademark legislation in most countries around the world prohibits trademarks consisting of or including State emblems and other official insignias.

Recently, the EUIPO Board of Appeal had the chance to rule out a dispute targeting this topic.

The case concerns the following EU trademark application for classes 16, 25, 35, 36, 38, 39, 41, 43, 44, 45:

The EUIPO refused registration based on absolute grounds – Article 7(1)(h) EUTMR (trademarks which have not been authorized by the competent authorities and are to be refused pursuant to Article 6ter of the Paris Convention for the Protection of Industrial Property shall not be registered).

According to the Office, the Maltese cross is part of the official Merchant Flag of Malta. Usually, merchant flags match with the official States flags but in the case of Malta, they are different. The cross in the Merchant Flag of Malta refers to the Sovereign Order of Malta.

The applicant, that is also related to this Order, stated that the consent of the Order was secured but the Office expected such consent from the Republic of Malta too.

The Board of Appeal annulled the refusal concluding that such additional consent is not necessary. The reason was that the Republic of Malta itself received consent from the Order to use this cross taking into account the historic fact that the Order is centuries older as an organization than the Republic of Malta.