TMEP 807.14(e)(iii): Color Marks

This is the October 2015 Edition of the TMEP

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807.14(e)(iii)    Color Marks

The amendment of any color in a color mark is a prohibited material alteration.

Color marks are marks that consist solely of one or more colors used on particular objects or substances as a source identifier (as opposed to marks that include color in addition to other elements). See TMEP §§1202.05–1202.05(i). Color marks generally appear in a drawing with the outline or configuration of the goods on which they appear to show the placement of the color mark. However, the shape or configuration of the goods is not part of the mark. The mark is comprised solely of the color as applied to the object or substance, in the manner depicted and described, so that changing or amending the color of the mark would always change the entire commercial impression created by the mark.

An amendment of the mark to show the same color on a different object is also generally a material alteration (e.g., an amendment of a drawing of a blue hammer to a blue saw). A color takes on the characteristics of the object to which it is applied, and the commercial impression of a color may change depending on the object to which it is applied. See In re Thrifty, Inc., 274 F.3d 1349, 1353, 61 USPQ2d 1121, 1124 (Fed. Cir. 2001) (“[A] word mark retains its same appearance when used on different objects, but color is not immediately distinguishable as a service mark when used in similar circumstances.”); In re Hayes, 62 USPQ2d 1443, 1445 (TTAB 2002); TMEP §1202.05(c).

See TMEP §807.07(e) regarding black-and-white drawings in an application that includes a color claim, and TMEP §807.07(c) regarding incorrect color claims.