TMEP 808.03(d): Inaccurate Description in Application or Amendment

October 2017 Edition of the TMEP

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808.03(d)    Inaccurate Description in Application or Amendment

If the examining attorney determines that the description misdescribes some element of the mark, such that the description is inconsistent with the mark shown on the drawing, the examining attorney must require the applicant to amend the description, even if the description will not be printed.  An inaccurate description must be corrected to accurately reflect the mark regardless of whether the description will be printed.  The amendment of the description may be done by examiner’s amendment, with the prior approval of the applicant.

The following are examples of inaccurate descriptions:

Design comprising two overlapping triangles made up of horizontal lines with three stars positioned below.

The mark consists of two overlapping triangles with two stars positioned below.

Note: This description is inaccurate because there are three stars in the mark.

Design comprising a single grape leaf with an attached vine in front of a crescent moon.

The mark consists of the design of a single grape leaf with an attached vine in front of a full moon design.

Note: This description is inaccurate because the mark contains a crescent moon design.

Design comprising the wording 'FLORIDA'S FOOD SERVICE' represented in stylized font to the left of a design of a chef's hat with eyes and mustache underneath.

The mark consists of the stylized wording "FLORIDA’S FOOD SERVICE" to the left of a stylized chef design.

Note: This description is inaccurate because the term "FLORIDA" includes an "’S" in the description. The change in the spelling of "FLORIDA" would not be considered an obvious misspelling because it is unclear whether the applicant intended for the mark to include the "’S". Either the mark or the description must be amended.

Design comprising the wording 'Floods4Less' represented in stylized font with the numeral four used to represent the word 'for' and the design of a pool of water under the wording.

The mark consists of the stylized wording "FLOODS FOR LESS" with a pool of water under the wording.

Note: This description is inaccurate because the mark includes the numeral "4" rather than the word "FOR".

Design comprising the wording 'C3 Reduct' represented in stylized font with the numeral three shown as a superscript after the letter 'C'.

The mark consists of the stylized wording "C THREE REDUCT".

Note: This description is inaccurate because the mark includes the superscript number "3" following the letter "C" rather than the word "THREE". A proper description could refer to the numeral as "3" or "CUBED".