TMEP 202.01: Clear Drawing of the Mark
October 2017 Edition of the TMEP
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202.01 Clear Drawing of the Mark
In a §66(a) application, the drawing must meet the requirements of the Madrid Protocol and the Common Regulations Under the Madrid Agreement Concerning the International Registration of Marks and the Protocol Relating to That Agreement, which are available on the IB’s website at http://www.wipo.int/madrid/en/. The IB will determine whether the drawing meets these requirements before sending the application to the USPTO. See TMEP §§1904 et seq. for further information about §66(a) applications.
Under 37 C.F.R. §2.21(a)(3), a §1 or §44 applicant must submit "a clear drawing of the mark" to receive a filing date, except in applications for registration of sound, scent, and other non-visual marks. A separate drawing page (or digital image of a separate drawing page in an application filed through the Trademark Electronic Application System ("TEAS")) is not mandatory, but is encouraged. See TMEP §807.09 regarding "drawings" in applications for registration of non-visual marks.
A "drawing" is simply a depiction of the mark for which registration is sought. 37 C.F.R. §2.52. A drawing that includes multiple elements that do not comprise an identifiable mark, or that consists of wording describing the mark, does not constitute a clear drawing of the mark.
An application that includes two or more drawings displaying materially different marks does not meet the requirement for a "clear drawing of the mark." Therefore, an application is denied a filing date if it includes two or more drawings displaying materially different marks. See Humanoids Group v. Rogan, 375 F.3d 301, 71 USPQ2d 1745 (4th Cir. 2004).
However, if an applicant (1) submits a separate drawing page showing a mark in a paper application, (2) enters a standard character mark in the "Mark Information" field of an application filed through TEAS, or (3) attaches a.jpg file containing a mark to the "Mark Information" field of a TEAS application, and a different mark appears elsewhere in the application, the drawing page or mark shown in the "Mark Information" field on TEAS will control for purposes of determining the nature and elements of the mark. The USPTO will grant a filing date to the application, and disregard any other mark that appears elsewhere in the application. The applicant will not be permitted to amend the mark if the amendment is a material alteration of the mark on the drawing page in a paper application or the "Mark Information" field in a TEAS application. In re L.G. Lavorazioni Grafite S.r.l., 61 USPQ2d 1063 (Dir USPTO 2001). See 37 C.F.R. §2.72 and TMEP §§807.14 et seq. regarding material alteration of a mark.
A specimen showing the mark does not satisfy the requirement for a drawing. If the only depiction of the mark is on a specimen ( e.g., an advertisement, a photograph of the goods, or the overall packaging), then there is no drawing, and the application will be denied a filing date.
See TMEP §§807 et seq. for additional information about the examination of drawings.
See also TMEP §204.03 regarding the examining attorney’s handling of applications that are erroneously granted a filing date.