1401.03(b) Designation of Class by USPTO When Class Number Is Not Designated or Is Inaccurate in Application Under §1 or §44
In an application under §1 or §44 of the Trademark Act, if the applicant does not designate a class number(s), the USPTO will do so. If the class number(s) indicated by the applicant is clearly wrong (e.g., goods are classified in a service class), the USPTO will change the classification, either prior to or during examination.
Upon examination, the classification must be amended if the class numbers are incorrect. When the examining attorney requires or recommends an amendment of the identification of goods and/or services that would necessitate an amendment of the classification, the examining attorney should also require the applicant to amend the classification.
If an incorrect class number was designated by the Pre-Examination Section, and the examining attorney must issue an Office action, he or she must also inform the applicant of the correct class number for the identified goods and/or services and require amendment of the classification. If it is unnecessary to issue an Office action, the examining attorney must ensure that the correct classification is entered into the electronic records of the USPTO.
The examining attorney may amend or correct classification through an examiner’s amendment, without prior authorization by the applicant. Groening v. Missouri Botanical Garden, 59 USPQ2d 1601 (Comm’r Pats. 1999). See TMEP §707.02.
Before approving an application for publication, the examining attorney must check to make sure that the properly assigned class is reflected in the electronic records of the USPTO.