807.07(f)   Black-and-White Drawings that Contain Gray or Black-and-White Drawings with a Mark Description that Refers to Black, White, or Gray

807.07(f)(i)   TEAS, TEAS Plus, and §66(a) Applications

If the applicant submits a black-and-white drawing that contains gray or stippling that produces gray tones, and the application states that color is not claimed as a feature of the mark, no further inquiry is required.  Similarly, if an applicant submits a black-and-white drawing and a description of the mark that references black, white, and/or gray, and the applicant states that color is not claimed as a feature of the mark, no further inquiry is required and no change to the description of the mark is required.

The word "No" in the "Color Mark" field on a TEAS or TEAS Plus application, or in the "Mark in Color" field on a §66(a) application, is sufficient to indicate that color is not claimed as a feature of the mark, even if the application contains the notation "grayscale" in reference to the drawing.

When a mark contains stippling, it is generally not necessary to require a statement that the stippling represents shading or is a feature of the mark, unless the examining attorney believes such a statement is necessary to accurately describe the mark.  See TMEP §808.01(b) regarding stippling statements.

807.07(f)(ii)   Applications Filed on Paper

If the applicant submits a black-and-white drawing on paper and the application is silent about whether color is claimed as a feature of the mark, the presence of any gray in the drawing creates an ambiguity as to whether black, white, and/or gray are claimed as a feature of the mark.  Similarly, if an applicant submits a black-and-white drawing on paper and the application is silent about whether color is claimed as a feature of the mark, the inclusion of a description of the mark that refers to black/white/gray creates an ambiguity as to whether black/white/gray is claimed as a feature of the mark.  In these cases, the examining attorney must require that the applicant submit one of the following:

  • (1) A statement that the mark is not in color.  The applicant may submit the statement, or the examining attorney may obtain the information in a telephone interview or e-mail exchange with the applicant or the applicant’s qualified practitioner, and enter a Note to the File in the record that the mark is not in color; or
  • (2) A statement that the color(s) black, white, and/or gray is a feature of the mark, and a separate statement naming the color(s) and describing where the color(s) appear(s) on the mark.