1401.05(a) Identification and Classification of Kits, Gift Baskets, and Items Sold as a Unit

The USPTO permits registration of a kit or gift basket in a single international class, even if the identification of goods includes components that are classified in other classes. This practice is not recognized by the Nice Classification and is not followed by the International Bureau of WIPO nor by most other national trademark offices. See TMEP §1902.02(g)(iii) regarding identification of kits and gift baskets in applications for international registration.

Although certain types of kits are deemed acceptable for identification and classification purposes without listing the individual components (e.g., face painting kits and teeth whitening kits in Class 3, and first aid kits and ovulation test kits in Class 5), in general, the identification must indicate the type of kit and its principal components. Kits that are deemed acceptable for identification and classification purposes without listing the individual components are included in the ID Manual and are generally classified according to purpose; other kits are classified on a case-by-case basis using the classification principles set forth below.

Generally, kits are identified and classified in two ways:

(1) If the kit is for the purpose of making a single object, it would be classified by the item it is intended to make. For example, kits for making wine consisting of fresh grapes and chemicals for fermenting wine would be classified in Class 33, the class for wine, even though the individual components would be classified in other classes (e.g., fresh grapes in Class 29 and chemicals for fermenting wine in Class 1).
(2) If the kit is a combination of a number of components around a theme (e.g., nail care kits), the class that includes the majority of individual components in the kit generally controls the classification for the entire kit. Thus, a nail care kit comprised of nail polish (Class 3), nail files (Class 8), nail polish remover (Class 3), an instruction manual (Class 16), and false nails (Class 3) is classified in Class 3, which is the class of the majority of individual components in the kit. However, the identification must be modified to list all of the components in Class 3 at the beginning of the list of components. In such cases, the identification must indicate the type of kit and list the components, with all of the items in the predominant class listed first. Components that are secondary should be set forth after the primary components.

Example – "Nail care kits comprised primarily of nail polish, nail polish remover, and false nails and also including nail files and printed instructions" is acceptable in Class 3, the class of the primary components which are listed first in the list of kit components.

Example – "Nail care kits comprised of nail polish, nail polish remover, false nails, nail files, and printed instructions" is acceptable in Class 3, the class of the primary components which are listed first in the list of kit components.

Example – "Nail care kits comprised of nail polish, nail files, nail polish remover, an instruction manual, and false nails" is properly classified in Class 3, but is not acceptably worded because the predominant components in Class 3 (i.e., nail polish, nail polish remover, and false nails) are not all listed first in the list of kit components.

If the goods are kits around a particular theme, but the majority of components are secondary components, the identification should indicate that the kits are comprised "primarily" of specific components in a particular class and subsequently indicate that the kits are "also consisting of" the secondary items. The secondary components may be in a different class or classes from the primary component(s). In that case, the kits are classified in the class of the primary components, even if the primary components are not the majority of components in the kits.

Example – "Nail care kits comprised primarily of nail polish and also including nail files and printed instructions" is acceptable in Class 3, because nail polish is clearly indicated as the primary component and appears first in the list of kit components.

If the individual components of the kit do not appear to have a predominant class (e.g., the kit contains two or three components, each in a different class), the applicant may elect which class(es) the kit should be in, but the identification must still list all of the goods that control the class first in the list of kit components.

Example – "Tool kits comprising hand saws and power-driven saws" is acceptable in Class 8 because there is no predominant class for the components in the kit and "hand saws," which are listed first in the list of components, are classified in Class 8.

Example – "Tool kits comprising power-operated saws and hand saws" is acceptable in Class 7 because there is no predominant class for the components in the kit and "power-operated saws," which are listed first in the list of components, are classified in Class 7.

Example – "Tool kits comprising carpenter’s levels, hand saws, power-driven saws, and carpenters’ rules" is not acceptable in Class 9 because the components in Class 9 are not all listed first in the list of components. The components appropriate to Class 9, carpenter’s levels and carpenters’ rules, must all be listed first in the list of components for an acceptable identification in Class 9.

Classification of multi-component kits that have no predominant components is determined by the first listed component. Rearranging the order of the components listed will impact the classification of kits with no predominant components, with the class of the first-listed component dictating the appropriate class for the kits.

Example – "Tool kits comprising carpenter’s levels, hand saws, and power-driven saws" is acceptable in Class 9 because there is no predominant class for the kit components and "carpenter’s levels," which are listed first in the list of components, are classified in Class 9.

Example - "Tool kits comprising hand saws, power-driven saws, and carpenter’s levels" is acceptable in Class 8 because there is no predominant class for the kit components and "hand saws," which are listed first in the list of components, are classified in Class 8.

Example - "Tool kits comprising power-driven saws, carpenter’s levels, and hand saws" is acceptable in Class 7 because there is no predominant class for the kit components and "power-driven saws," which are listed first in the list of components, are classified in Class 7.

The same criteria are applied to the classification of gift baskets.

Similarly, a product may comprise items that are sold as a unit and that, if sold separately, would be classified in different classes. The identification in such cases should include wording to indicate that the goods are "sold as a unit." All of the predominant elements should be listed first and the collection of items sold as a unit will be classified accordingly.

Example - Computer software is classified in Class 9. Instructional manuals are classified in Class 16. The item "Computer software for the creation of firewalls and instructional manuals related thereto, sold as a unit" would be classified in Class 9. "Instructional manuals for the creation of firewalls and computer software relating thereto, sold as a unit" would be classified in Class 16.