TMEP 807.07(a)(i): Color Must Be Claimed as a Feature of the Mark

This is the October 2015 Edition of the TMEP

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807.07(a)(i)    Color Must Be Claimed as a Feature of the Mark

If an applicant submits a color drawing, or a description of the mark that indicates the use of color on the mark, the applicant must claim color as a feature of the mark. 37 C.F.R. §2.52(b)(1). If the color claim is incorrect, incomplete, or inconsistent with the color(s) shown on the drawing, the color claim must be corrected to conform to the color(s) depicted on the drawing. If the color claim or mark description references changeable colors, the examining attorney must require an amended mark description that deletes the reference to the color in the mark varying or being changeable and restricts the description to only those colors shown on the drawing. See TMEP §807.01. Alternatively, the applicant may amend to a black-and-white drawing, if the amendment would not constitute a material alteration. A properly worded color claim would read as follows:

The color(s) <name the color(s)> is/are claimed as a feature of the mark.

The color claim must include the generic name of the color(s) claimed. It is usually not necessary to indicate shades of a color, but the examining attorney has the discretion to require that the applicant do so, if necessary to accurately describe the mark. The color claim may also include a reference to a commercial color identification system. The USPTO does not endorse or recommend any one commercial color identification system.

In an application filed on or after November 2, 2003, an applicant cannot file a color drawing with a statement that "no claim is made to color" or "color is not a feature of the mark.” If this occurs, the examining attorney must require the applicant to claim color as a feature of the mark. The applicant may not substitute a black-and-white drawing, unless the examining attorney determines that color is non-material.