T.M.E.P. § 202.01
Clear Drawing of the Mark

Executive summary:

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202.01 Clear Drawing of the Mark

In a §66(a) application, the drawing must meet the requirements of the Madrid Protocol and Madrid Common Regulations. The IB will determine whether the drawing meets these requirements before sending the application to the USPTO. See TMEP §§1904 et seq. for further information about §66(a) applications.

Under 37 C.F.R. 2.21(a)(3), a §1 or §44 applicant must submit "a clear drawing of the mark" to receive a filing date. A separate drawing page (or digital image of a separate drawing page in an application filed through the Trademark Electronic Application System ("TEAS")) is not mandatory, but is encouraged.

An application that includes two or more drawings displaying materially different marks does not meet the requirement for a "clear drawing of the mark." Therefore, an application is denied a filing date if the applicant submits two or more drawings displaying materially different marks. See Humanoids Group v. Rogan, 375 F.3d 301, 71 USPQ2d 1745 (4th Cir. 2004).

However, if an applicant submits a separate drawing page showing a mark, and a different mark appears in the written application, the drawing will control for purposes of determining what the mark is. The USPTO will grant a filing date to the application, and disregard the mark in the written application. The applicant will not be permitted to amend the mark if the amendment is a material alteration of the mark on the drawing page. In re L.G. Lavorazioni Grafite S.r.l., 61 USPQ2d 1063 (Dir USPTO 2001). See 37 C.F.R. 2.72 and TMEP §§807.14 et seq. regarding material alteration of a mark.

A specimen showing the mark does not satisfy the requirement for a drawing. If the only depiction of the mark is on the specimen, then there is no drawing, and the application will be denied a filing date.

See TMEP §§807 et seq. for additional information about the examination of drawings.

See also TMEP §204.03 regarding the examining attorney's handling of applications that are erroneously granted a filing date.