TMEP 1011.04: Drawings and Descriptions of Three-Dimensional and Non-Visual Marks

This is the October 2015 Edition of the TMEP

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1011.04    Drawings and Descriptions of Three-Dimensional and Non-Visual Marks

If the foreign application or registration depicts several views of a three-dimensional mark, the examining attorney must require the applicant to comply with 37 C.F.R. §2.52(b)(2), and submit an acceptable drawing that depicts a single rendition of the mark. See generally TMEP §§807 et seq. regarding drawings. In the alternative, the applicant may petition the Director, pursuant to 37 C.F.R. §2.146(a)(5), to waive the requirement and accept a drawing featuring multiple views of the mark. See TMEP Chapter 1700 regarding petitions to the Director.

In all such cases, the applicant must indicate that the mark is three-dimensional. 37 C.F.R. §2.52(b)(2); TMEP §807.10. If necessary to adequately depict the commercial impression of the mark, the applicant may be required to submit a drawing that shows the placement of the mark by surrounding the mark with a proportionately accurate broken-line representation of the particular goods, packaging, or advertising on which the mark appears. The applicant must also use broken lines to show matter not claimed as part of the mark. For any drawing using broken lines to indicate placement of the mark, or matter not claimed as part of the mark, the applicant must include a written description of the mark and explain the purpose of the broken lines, e.g., by indicating that the matter shown by the broken lines is not a part of the mark and that it serves only to show the position of the mark. 37 C.F.R. §2.52(b)(4); TMEP §807.08.

With respect to sound, scent, and other non-visual marks, an applicant is not required to submit a drawing, but must submit a detailed description of the mark. TMEP §807.09. If the foreign registration includes a drawing, such as a musical staff depicting the notes of which a sound mark is comprised, the U.S. application need not include such a drawing. As the drawing of the mark must be a substantially exact representation of the mark in the foreign registration, and the description of the mark defines the mark sought to be registered in a non-visual mark, the description of the mark in the U.S. application must be substantially comparable to any description of the mark in the foreign application or registration. 37 C.F.R. §§2.51(c), 2.52(e).