TMEP 807.07(d): Color Drawings that Contain Black, White, or Gray

October 2017 Edition of the TMEP

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807.07(d)    Color Drawings that Contain Black, White, or Gray

When color is claimed as a feature of the mark, the applicant must submit a color claim that identifies each color and a separate color location statement describing where each color appears in the mark.  37 C.F.R §2.52(b)(1); TMEP §§807.07(a)–807.07(a)(ii).  The applicant must claim all colors shown in the mark; the applicant cannot claim color for some elements of the mark and not others. See id.  For example, when the drawing includes solid black lettering as well as elements in other colors, the applicant must claim the color black as a feature of the mark and include reference to the black lettering in the color location statement.  The applicant may not state that solid black lettering represents all colors, or that it represents the particular color of the label, product, packaging, advertisement, website, or other specimen on which the mark appears at any given time.

If color is claimed as a feature of the mark, the drawing may include black, white, and/or gray used in two ways: (1) as claimed features of the mark; and/or (2) as a means 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 on a product or package; to represent shading or stippling; to depict depth or three-dimensional shape; or to indicate areas that are not part of the mark, such as background or transparent areas. See TMEP §§807.08, 808.01(b).

The terms "background" and "transparent areas" refer to the white or black portions of the drawing which are not part of the mark, but appear or will appear in the particular color of the label, product, packaging, advertisement, website, or other acceptable specimen on which the mark is or will be displayed.  The applicant may not claim that the background or transparent areas represent all colors or that they represent the particular color of the label, product, packaging, advertisement, website, or other specimen on which the mark appears at any given time.

If the applicant claims color as a feature of the mark, the examining attorney must require the applicant to:

  • state that the color(s) black, white, and/or gray (and all other colors in the drawing) are claimed as a feature of the mark, and describe where the color(s) appear(s) on the mark; or
  • if appropriate, state that the black, white, and/or gray in the drawing represents background, outlining, shading, and/or transparent areas and is not part of the mark.

These statement(s) may be submitted in either a written amendment to the application or by an examiner's amendment.  The examining attorney must ensure that the statement(s) is entered into the Trademark database.  The statement(s) will be printed on the registration certificate.

The only exception to the requirement to claim or explain any black, white, and/or gray shown on the drawing is that, if the background of the drawing is white and it is clear that the white background is not part of the mark, no explanation of the white background is required.  For example, if the drawing depicts the letters "ABC" in solid blue on a white background, or depicts a solid purple and green flower on a white background, no statement about the white background is required.  On the other hand, if the shape of each of the letters "ABC" is outlined in blue with an enclosed white interior, or if the purple and green flower is enclosed in a green or black rectangle, square, or circle with a white interior, the applicant must explain the purpose of the interior white areas on the drawing.