807.07(e) Black-and-White Drawings and Color Claims
If an applicant submits a black-and-white drawing that is lined for color (see TMEP §808.01(b)), or if the applicant submits a black-and-white drawing with an application that includes a color claim, the examining attorney must require the applicant to submit a color drawing, a claim that color(s) are a feature of the mark, and a separate statement naming the color(s) and describing where they appear on the mark. If, however, the examining attorney determines that the color is a non-material element of the drawing, the applicant may instead be given the option of submitting a black-and-white drawing that is not lined for color, or deleting the color claim in the written application, whichever is applicable.
If an applicant submits a black-and-white drawing that is not lined for color, and there is no color claim in the written application, generally the applicant cannot substitute a color drawing and claim color, unless the examining attorney determines that the color is a non-material element of the drawing.