TMEP 807.12(a)(ii): Punctuation on the Drawing but Not on the Specimen

This is the October 2015 Edition of the TMEP

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807.12(a)(ii)    Punctuation on the Drawing but Not on the Specimen

If a drawing contains punctuation, the elements of punctuation are presumed to be part of the mark. Thus, if there is punctuation in the mark on the drawing, the punctuation must also appear on the specimen or the drawing is not considered to be a substantially exact representation of the mark as used in commerce. If deletion of the punctuation from the drawing does not alter the commercial impression, the drawing may be amended to match the specimen. If deletion of the punctuation changes the commercial impression, i.e., constitutes a material alteration, the applicant must submit a substitute specimen to match the original drawing.  See TMEP §§807.14–807.14(f) regarding material alteration.

For example, if the mark on the drawing is “ALL THE KING’S MEN,” and the mark on the specimen is ALL THE KING’S MEN, the mark on the drawing is not a substantially exact representation of the mark as used in commerce. Since the deletion of the quotation marks from the drawing would not change the commercial impression of the mark, the drawing may be amended to match the specimen. The applicant has the option to either: (1) amend the drawing to delete the punctuation; or (2) submit a new specimen showing use of the mark with the punctuation.

However, if the mark on the drawing is GOT MILK?, and the mark on the specimen is GOT MILK, the deletion of the punctuation from the drawing would constitute a material alteration because it changes the commercial impression from a question to a statement. Therefore, the drawing may not be amended and the applicant must submit a substitute specimen that includes punctuation in order for the drawing to be a substantially exact representation. See id.