1202.05(d)    Drawings of Color Marks Required

All marks, other than sound and scent marks, require a drawing. TMEP §807. An application for a color mark that is filed without a drawing will be denied a filing date. 37 C.F.R. §2.21(a)(3). Similarly, an application for a color mark with a proposed drawing page that states "no drawing," or sets forth only a written description of the mark, will be denied a filing date. The drawing provides notice of the nature of the mark sought to be registered. Only marks that are not capable of representation in a drawing, such as sound or scent marks, are excluded from the requirement for a drawing. Color marks are visual and should be depicted in color drawings, accompanied by: (1) a color claim naming the color(s) that are a feature of the mark; and (2) a separate statement naming the color(s) and describing where the color(s) appear and how they are used on the mark. 37 C.F.R. §2.52(b)(1). See TMEP §§807.07–807.07(g) for color mark drawings and 808–808.03(f) for description of the mark.

1202.05(d)(i)    Drawings of Color Marks in Trademark Applications

In most cases, the proposed color mark drawing will consist of a representation of the product or product package. The drawing of the mark must be a substantially exact representation of the mark as used, or intended to be used, on the goods. 37 C.F.R. §2.51. A depiction of the object on which the color is used is needed to meet this requirement.

The object depicted on the drawing should appear in broken or dotted lines. The broken or dotted lines inform the viewer where and how color is used on the product or product package, while at the same time making it clear that the shape of the product, or the shape of the product package, is not claimed as part of the mark. 37 C.F.R. §2.52(b)(4); TMEP §807.08. In the absence of a broken-line drawing, the USPTO will assume that the proposed mark is a composite mark consisting of the product shape, or the product package shape, in a particular color.

Color used on multiple goods

If the proposed color mark is used on multiple goods, the drawing required will depend on the nature of the goods. The drawing of the mark must be a substantially exact representation of the mark as used, or intended to be used, on the goods. 37 C.F.R. §2.51. A drawing consisting of a depiction of only one of the goods will be accepted if the goods, or the portions of the goods on which the color appears, are similar in form and function so that a depiction of only one of the goods is still a substantially exact representation of the mark as used on all of the goods. For example, if the mark is the color purple used on refrigerators and freezers, a drawing of a purple freezer shown in broken lines (with a description of the mark claiming the color purple and indicating that it is used on the freezer) would be sufficient. Or, if the mark is the color pink used on the handles of rakes, shovels, and hoes, a drawing of any of those items depicted in dotted lines (with a description of the mark claiming the color pink and stating that the handle is pink) would be sufficient. Or, if the mark consists of product packaging for various food items that is always blue with a pink circle, a drawing of any one of the packages shown in dotted lines (with a description of the mark claiming the colors blue and pink and describing the location of the colors on the packaging) would be sufficient.

If the proposed color mark is used on multiple goods that are dissimilar or unrelated, or if color is used in different ways on different goods, so that a depiction of one of the goods is not a substantially exact representation of the mark as used on all of the goods (e.g., the color purple used on microscopes and vending machines), a separate application must be submitted for each item.

Color used on liquids or powders

Sometimes a color mark consists of color(s) used on liquids or powders. For example, the mark might consist of fuchsia body oil or red, white, and blue granular washing machine detergent. In these cases, the nature of the drawing will depend on the manner of use of the liquid or powder. If the liquid or powder is visible through the product package, the drawing should consist of the shape of the product package shown in broken or dotted lines, with the description of the mark identifying the color(s) of the liquid or powder.

1202.05(d)(ii)    Drawings of Color Marks in Service Mark Applications

It is difficult to anticipate all of the issues that may arise when examining a proposed color mark for services because there are a myriad of ways that color can be used in connection with services. However, the following general guidelines will be used to determine the sufficiency of drawings in these cases:

  • The purpose of a drawing is to provide notice to the public of the nature of the mark. As with color used on goods, a color service mark does not consist of color in the abstract. Rather, the mark consists of color used in a particular manner, and the context in which the color is used is critical to provide notice of the nature of the mark sought to be registered. Therefore, as with color marks used on goods, a drawing, supplemented with a written description of the mark, is required.
  • The drawing must display the manner in which the mark is used in connection with the services. As with any application, only one mark can be registered in a single application. TMEP §807.01. The mark depicted on the drawing, as used on the specimen, must make a separate and distinct commercial impression in order to be considered one mark. See In re Thrifty, Inc., 274 F.3d 1349, 61 USPQ2d 1121 (Fed. Cir. 2001); In re Chem. Dynamics Inc., 839 F.2d 1569, 5 USPQ2d 1828 (Fed. Cir. 1988). See TMEP §1202.05(c) regarding color as a separable element.
  • If color is used in a variety of ways, but in a setting that makes a single commercial impression, such as a retail outlet with various color features, a broken-line drawing of the setting must be submitted, with a detailed description of the mark claiming the color(s) and describing the location of the color(s).
  • If an applicant who seeks to register a single color as a service mark used on a variety of items not viewed simultaneously by purchasers, e.g., stationery, uniforms, pens, signs, shuttle buses, store awning, and walls of the store, submits a drawing that displays the mark as a solid-colored square with a dotted peripheral outline, the application will receive a filing date. However, the examining attorney will generally require the applicant to submit a single amended drawing showing how the mark is used in connection with the services. The applicant must also submit a detailed description of the mark identifying the color and describing its placement. Thrifty, 274 F.3d at 1353, 61 USPQ2d at 1124. See TMEP §1202.05(c) regarding color as a separable element.
  • The commercial impression of a color may change depending on the object on which it is applied. See Thrifty, 274 F.3d at 1353, 61 USPQ2d at 1124.

1202.05(d)(iii)    Amendment of Drawings of Color Marks

Because color marks are comprised solely of the color as applied to the product or product package, in the manner depicted on the drawing and explained in the description of the mark, amending the color of the proposed mark will always change the commercial impression of the mark. Thus, the amendment of any color in a color mark is a prohibited material alteration. Similarly, the amendment of the color mark to show the same color on a different object is also, generally, a material alteration, e.g., an amendment of a drawing of a blue hammer to a blue saw is a material alteration.

1202.05(d)(iv)    Drawings for Marks Including Both Color and Words or Design

Sometimes, a product or advertisement for a service will include both color and words or a design. For example, the surface of a toaster might be green, with the letters "ABC" and a design displayed on the toaster. In this situation, the applicant must decide whether to seek registration for the color green used on toasters, the letters "ABC" with or without the design, the design alone, or some combination of these elements. If applicant only seeks registration for the use of the color, no word or design elements should appear on the drawing.