TMEP 807.07(a)(ii): Applicant Must Specify the Location of the Colors Claimed

This is the October 2015 Edition of the TMEP

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807.07(a)(ii)    Applicant Must Specify the Location of the Colors Claimed

If an applicant submits a color drawing, in addition to claiming the color(s), the applicant must include a separate statement specifying where the color(s) appear(s) on the mark. 37 C.F.R. §2.52(b)(1). This statement is often referred to as a “color location statement.” In a TEAS application, the color location statement should be set forth in the “Description of the Mark” field. A properly worded color location statement would read as follows:

The mark consists of <specify the color(s) and literal or design element(s) on which the color(s) appear, e.g., a red bird sitting on a green leaf>.

If the color location statement is incorrect, incomplete, or inconsistent with the color(s) shown on the drawing, the color location statement must be corrected to conform to the color(s) depicted on the drawing. If the statement 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. However, if the record contains an accurate and properly worded color claim listing all the colors, and an informal description of where the colors appear, but one of the colors is omitted from the formal description of the colors in the mark, the examining attorney may enter an amendment of the color description that accurately reflects the location of all colors in the mark without prior approval by the applicant or the applicant’s qualified practitioner. See TMEP §707.02.

Example – A TEAS applicant includes a statement in the “Miscellaneous” field that refers to the mark as a blue, red, and yellow ball and includes an accurate and properly worded color claim listing all colors in the mark, but omits the color yellow from the description of the mark. The examining attorney may enter an amendment of the description to accurately reflect all colors in the mark.

The color location statement must include the generic name of the color claimed. The statement may also include a reference to a commercial color identification system. The USPTO does not endorse or recommend any one commercial color identification system.

It is usually not necessary to indicate shades of a color, but the examining attorney has the discretion to require that the applicant indicate shades of a color, if necessary to accurately describe the mark.

See TMEP §1202.05(e) for additional information regarding the requirement for a written explanation of a mark consisting solely of color.