TMEP 1902.02(e): Color Claim

October 2017 Edition of the TMEP

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1902.02(e)    Color Claim

If color is claimed as a feature of the mark in the basic application and/or registration, the international application must include a statement that color is claimed as a feature of the mark, and set forth the same name(s) of the color(s) claimed in the basic application and/or registration. 37 C.F.R. §§7.11(a)(4) and 7.12(a).

If the basic application and/or registration includes a black-and-white reproduction of the mark with a description of the mark indicating that color is used on the mark, or a reproduction that is lined for color ( see Note below), the USPTO will presume that color is a feature of the mark, unless the basic application and/or registration includes a statement that "no claim is made to color" or "color is not a feature of the mark."  Thus, the basic application and/or registration will be presumed to have a color claim.

If color is not claimed as a feature of the mark in the basic application and/or registration, an applicant may not claim color as a feature of the mark in the international application. 37 C.F.R. §7.12(b).

Note Regarding Color Drawings in United States Basic Applications or Registrations:  Prior to November 2, 2003, the USPTO did not accept color drawings.  An applicant who wanted to show color in a mark had to submit a black-and-white drawing, with a statement identifying the color(s) and describing where it/they appeared in the mark.  Alternatively, the applicant could submit a black-and-white drawing that showed color by using a lining system that previously appeared in 37 C.F.R. §2.52 but was deleted from the rule effective October 30, 1999.  See notice at 64 Fed. Reg. 48900, 48903 (Sept. 8, 1999) and 1226 TMOG 103, 106 (Sept. 28, 1999).  It was presumed that color was claimed as a feature of the mark, unless the applicant specifically stated that no claim was made to color, or that color was not claimed as a feature of the mark.  The USPTO began accepting color drawings on November 2, 2003.  Effective November 2, 2003, the USPTO no longer accepts black-and-white drawings with a color claim, or drawings that show color by use of lining patterns. 37 C.F.R. §2.52(b)(1).  See TMEP §§807.07 et seq. regarding the current color requirements.