TMEP 807.07: Color in the Mark

October 2017 Edition of the TMEP

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807.07    Color in the Mark

37 C.F.R. §2.52(b)(1) Marks that include color.

If the mark includes color, the drawing must show the mark in color, and the applicant must name the color(s), describe where the color(s) appear on the mark, and submit a claim that the color(s) is a feature of the mark.

If the applicant wishes to register the mark in color, the applicant must submit a color drawing and meet the requirements of 37 C.F.R. §2.52(b)(1).  See TMEP §§807.07(a)–807.07(g) regarding the requirements for color drawings.  If the applicant does not claim color as a feature of the mark, the applicant must submit a black-and-white drawing.

Generally, if the applicant has not made a color claim, the description of the mark should not mention color(s), because reference to color in the description of a non-color mark creates a misleading impression. TMEP §808.02.  However, in some cases, it may be appropriate to submit a black-and-white drawing and a description of the mark that refers to black, white, and/or gray, if the applicant states that color is not claimed as a feature of the mark.  This occurs where the black, white, and/or gray is used as a means to indicate areas that are not part of the mark, such as background or transparent areas; to depict a certain aspect of the mark that is not a feature of the mark, such as broken- or dotted-line outlining to show placement of the mark; to represent shading or stippling; or to depict depth or three-dimensional shape.  See TMEP §§807.07(f)–807.07(f)(ii) regarding applications with black-and-white drawings and mark descriptions that refer to black, white, or gray with no corresponding color claim, TMEP §§807.07(d)–807.07(d)(iii) regarding color drawings that contain black, white, or gray, and TMEP §807.07(e) regarding black-and-white drawings and color claims.

See TMEP §§1202.05–1202.05(i) regarding the registration of marks that consist solely of one or more colors used on particular objects.