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 Standard, TEAS Plus, and §66(a) Applications

If the applicant submits a black-and-white drawing that contains gray or stippling that produces gray tones or the notation grayscale in reference to the drawing, and the word "No" appears in the "Color Mark" field in a TEAS Standard or TEAS Plus application, or in the "Mark in Color" field in a §66(a) application, no 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.

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

For permitted paper filings (see TMEP §301.01), 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 email 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.