TMEP 1214.03: “Phantom Marks” in §1(b) Applications

This is the October 2015 Edition of the TMEP

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1214.03    “Phantom Marks” in §1(b) Applications

In an intent-to-use application for which no allegation of use has been filed, it may be unclear whether the applicant is seeking registration of a mark with a changeable element. If an intent-to-use application indicates that the applicant is seeking registration of a “phantom mark” (e.g., if the application includes a statement that “the blank line represents a date that is subject to change”), the examining attorney must issue a refusal of registration under §§1 and 45 of the Trademark Act, 15 U.S.C. §§1051 and 1127, on the ground that the application seeks registration of more than one mark, as discussed above. If it is unclear whether an applicant is seeking registration of a “phantom” mark, the examining attorney should advise the applicant that if the specimen filed with an amendment to allege use under §1(c) of the Trademark Act, 15 U.S.C. §1051(c), or a statement of use under §1(d) of the Act, 15 U.S.C. §1051(d), shows that applicant is seeking registration of a mark with a changeable element, registration will be refused on the ground that the application seeks registration of more than one mark. This is done strictly as a courtesy. If information regarding this possible ground for refusal is not provided before the applicant files an allegation of use, the USPTO is not precluded from refusing registration on this basis.