TMEP 1401.03(a): Designation of Class by Applicant Normally Initially Accepted in Applications Under §§1 and 44

October 2017 Edition of the TMEP

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1401.03(a)    Designation of Class by Applicant Normally Initially Accepted in Applications Under §§1 and 44

Generally, in applications under §1 or §44 of the Trademark Act, prior to their assignment to an examining attorney, the USPTO retains the class number designated by the applicant, in the absence of any information clearly contradicting that classification.  Sometimes, a product could be classified in more than one class. Some products are classified differently depending on the type of material of which the product is composed or a particular use of the product. For example, plastic statuettes are in Class 20 while glass statuettes are in Class 21; reagents for research purposes are in Class 1 while reagents for medical use are in Class 5. The applicant may be asked for further clarification for classification of goods of this type during the examination of the application.  If the wording in the identification is broad enough to encompass more than one class, amendment will be required. See In re Omega SA, 494 F.3d 1362, 83 USPQ2d 1541 (Fed. Cir. 2007) (affirming decision that the examining attorney properly required amendment of the term "chronographs" in the identification of goods so that proper classification could be determined).  Also, if the examining attorney determines that the class designated by the applicant is incorrect, the examining attorney will require reclassification.