TMEP 807.04(b): When Special Form Drawing Is Required

This is the October 2015 Edition of the TMEP

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807.04(b)    When Special Form Drawing Is Required

A special form drawing is required if words, letters, or numerals are presented in a distinctive form that engenders an uncommon or “special” commercial impression that would be altered or lost were registration to issue based on a standard character drawing. In re Morton Norwich Prods., Inc., 221 USPQ 1023, 1023 (TTAB 1983) (holding LABID not registrable without a special form drawing because the specimen showed the letter “a” in smaller lettering with a diacritical accent that set off the “BID” portion of the mark, when the word “BID” had an accepted meaning as applied to drug prescriptions, i.e., “twice a day”); see In re United Servs. Life Ins. Co., 181 USPQ 655, 656 (TTAB 1973) (holding FOR LIFE INSURANCE SEE US not registrable without a special form drawing because the specimen showed the “US” portion of the mark in significantly larger lettering and underlined, suggesting a double entendre because “US” could stand for applicant’s name “United Services” or for the pronoun “us”); In re Dartmouth Mktg. Co., 154 USPQ 557, 558 (TTAB 1967) (finding LUNCHEON TIME presented “in an uncommon manner to the extent that a prospective purchaser’s initial impression of the mark might well be other than that which applicant may intend to convey by the well understood term ‘luncheon time’”).

A special form drawing is required for marks that contain superscripts, subscripts, exponents, or other characters that are not in the USPTO’s standard character set. In re AFG Indus. Inc., 17 USPQ2d 1162, 1164 (TTAB 1990) (requiring special form drawing for raised numeral). See TMEP §807.03(b) regarding the USPTO’s standard character set.

The USPTO encourages the use of standard character drawings. As a general rule, an applicant may submit a standard character drawing when a word, letter, numeral, or combination thereof creates a distinct commercial impression apart from any stylization or design element appearing on the specimen. If a mark remains the same in essence and is recognizable regardless of the form or manner of display that is presented, displaying the mark in standard character format affords a quick and efficient way of showing the essence of the mark. In re wTe Corp., 87 USPQ2d 1536, 1539-40 (TTAB 2008) (reversing refusal on the ground that the standard character mark on the drawing was not a substantially exact representation of the mark as actually used, finding that SPECTRAMET creates a distinct commercial impression apart from any stylization or design element appearing on the specimens, on which the letter “C” was displayed with an arrow design); see In re Oroweat Baking Co., 171 USPQ 168 (TTAB 1971) (holding requirement for special form drawing to register OROWEAT displayed with wheat designs in the letter “O” improper); In re Elec. Reps. Ass’n, 150 USPQ 476 (TTAB 1966) (finding special form drawing not required when acronym ERA makes an impression apart from the electron design).

When an application is for a mark in standard characters, the examining attorney must consider the manner in which the mark is used on the specimen, and decide whether the mark includes an essential element or feature that cannot be produced by the use of standard characters. See TMEP §§807.12(a)–807.12(a)(iii) regarding agreement between the mark on the drawing and the mark used on the specimen.

If the examining attorney determines that the mark in a standard character drawing should have been presented in special form, the applicant may submit a special form drawing if the amendment would not result in a material alteration of the mark. See 37 C.F.R. §2.72; TMEP §§807.14–807.14(f). If a standard character drawing is amended to a special form drawing, the examining attorney must ensure that the mark drawing code is changed. See TMEP §807.18 concerning mark drawing codes.