TMEP 1202.02(c): Drawings, Descriptions, and Disclaimers in Trade Dress Applications

This is the October 2015 Edition of the TMEP

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1202.02(c)    Drawings, Descriptions, and Disclaimers in Trade Dress Applications

Applicants often submit drawings and descriptions of marks depicting trade dress and containing matter that is: (1) not part of the mark; (2) functional; (3) nondistinctive and capable; (4) nondistinctive and incapable; (5) inherently distinctive; or (6) a combination of these factors. To ensure proper examination, the drawing and description of such a mark must accurately depict the mark the applicant intends to register. For example, both the drawing and the description of the mark must clearly indicate those portions that are claimed as part of the mark and those that are not.

If the drawing does not meet the requirements of 37 C.F.R. §2.52, the examining attorney must require the applicant to submit a substitute drawing and a substitute description of the mark. The examining attorney may require the applicant to provide additional information, such as pictures of the goods, samples, or other relevant materials pursuant to 37 C.F.R. §2.61(b), to assist in assessing the accuracy and completeness of the drawing and in crafting a comprehensive description of the mark.